Bqa18 v Minister for Home Affairs
[2023] FedCFamC2G 1188
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQA18 v Minister for Home Affairs [2023] FedCFamC2G 1188
File number(s): MLG 833 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 14 December 2023 Catchwords: MIGRATION – application in a case seeking reinstatement of judicial review application – where applicant applied for judicial review of decision of Immigration Assessment Authority – where applicant’s judicial review application was dismissed due to non-attendance – whether it is in the interests of justice to reinstate the application – found no reasonable excuse for the applicant’s non-attendance – whether the judicial review application has reasonable prospects of success – proposed grounds of review not reasonably arguable – application in a case dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2), 473DB(1), 473DC(1), 473DD
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 17.05(2)(a)
Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)
Part 7AA
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 30 October 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Solicitor for the Respondents: Mr Christopher Orchard of Sparke Helmore Lawyers ORDERS
MLG 833 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQA18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 15 April 2019 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an application in a case filed 15 April 2019 (reinstatement application), in which the applicant seeks reinstatement of his Application for judicial review filed 29 March 2018 (substantive application). In his substantive application, the applicant sought review of a decision of the second respondent (Authority) dated 12 March 2018, by which the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise Visa (Visa).
The applicant’s substantive application was dismissed on 3 April 2019 under r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) consequent upon the applicant failing to attend a hearing before this Court on 3 April 2019.
The first respondent opposes the applicant’s current reinstatement application, and also seeks orders that the application in a proceeding be dismissed with costs.
BACKGROUND
The applicant is a citizen of Sri Lanka.
On 29 September 2012 the applicant arrived on Christmas Island as an unauthorised maritime arrival (UMA).
On 10 October 2016 the applicant applied for the Visa. The applicant’s claims contained in his Visa application can be summarised as follows:
·the applicant is Catholic Sinhalese Tamil, and resided in Kokilai until approximately 1991 or 1992;
·the Sri Lankan Army (SLA) had a base in Kokilai, and the applicant would sometimes interpret for the SLA;
·approximately a year after the applicant left Kokilai, the Liberation Tigers of Tamil Eelam (LTTE) attacked and bombed the military base;
·the applicant was told by an acquaintance that the SLA suspected him of being an informant for the LTTE and that they were looking for him in relation to the bombing;
·because of this incident, and because he believed he was wanted by the authorities, the applicant fled to Lebanon and Malaysia; and
·the applicant returned to Sri Lanka in 2004 before departing for Australia eight years later.
On 10 July 2017 the Delegate refused to grant the applicant the Visa as they were not satisfied that the applicant was a refugee as defined by s 5H(1) of the Migration Act 1958 (Cth) (Act), nor were they satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Act.
Immigration Assessment Authority review on 12 March 2018
On 14 July 2017, the Department of Immigration and Border Protection (Department) referred the Delegate’s decision to the Authority for review under Part 7AA of the Act.
On 12 March 2018, the Authority affirmed the Delegate’s decision not to grant the applicant the Visa.
At paragraphs [15] – [28] of its decision the Authority set out its factual findings regarding the applicant.
At paragraphs [31] – [35] of its decision the Authority considered the applicant’s claims regarding his links to the LTTE and concluded as follows:
Based on the evidence before me, I find that the applicant’s profile as a bilingual Catholic Sinhalese from a Sinhalese settlement in the Northern Province, with past friendship links to Tamils – including Tamils connected to the LTTE – in the early 1990’s, would not give rise to any adverse interest in him by the Sri Lankan authorities. I am satisfied that the applicant can return to Sri Lanka and would not face a real chance of harm by any of the Sri Lankan authorities.
At paragraph [36] of its decision the Authority accepted that while the applicant was affected by a data breach by the Department, there was no evidence that the applicant would become of interest to the Sri Lankan authorities because of the data breach.
At paragraph [37] of its decision the Authority accepted that the applicant departed Sri Lanka illegally. The Authority also accepted that the Sri Lankan authorities may know or infer that the applicant made a claim for protection in Australia and that he will be subject to background checks on arrival in Sri Lanka. However, the Authority was not satisfied, having regard to the applicant’s profile, that he faced a real risk of any harm as a returning asylum seeker.
Accordingly, the Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act, nor does the applicant meet the requirements of s 36(2)(a) or s 36(2)(aa) of the Act.
PROCEEDINGS IN THIS COURT
On 15 April 2019, the applicant filed an application in a case in which he seeks reinstatement of his substantive application filed 29 March 2018. As noted above, the substantive application was dismissed pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules (Cth) because the applicant did not attend a hearing before this Court on 3 April 2019.
The applicant relies on his affidavit filed on 15 April 2019 in support of the reinstatement application.
The Minister filed a Response on 13 September 2023. The Response contains the following grounds:
1.The application for reinstatement does not provide grounds to justify reinstatement.
2.The application for reinstatement is significantly delayed.
The Minister relies upon its written submissions filed on 13 October 2023.
At the hearing before me on 30 October 2023, the applicant appeared on his own behalf with the assistance of an interpreter in the Sinhalese and English languages.
RELEVANT PRINCIPLES
The Court's power to set aside the orders made on 3 April 2019 is (now) contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) which relevantly provides that:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;
Whether or not to accede to the reinstatement application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] (FBS18).
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of certain factors which his Honour listed as:
(a)first, whether there is a reasonable excuse for the party’s absence;
(b)secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475. While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.
The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...
CONSIDERATION
Explanation for non-attendance
The applicant’s explanation for his non-attendance on 3 April 2019 is set out in his affidavit filed in support of the reinstatement application. In his affidavit, the applicant attaches a statutory declaration which states (without amendment):
Since the 2nd of April 2019 till the 10th of April 2019, I was suffering very much from back pain and flu and coughing so that I was unable to remember anything during these sick and suffering period one of my roommate friend called Rocelle Garde Bautista Rinosa Helped me a lot to recover and consulted with doctor on the 11th of April 2019 (Medical Certificate attached) for treatment.
My Federal Circuit Court matter was listed for hearing on the 3rd of April 2019 and due to my long sickness I was unable to realise the date of hearing and I missed my valuable period of appearing for my case matter.
In his affidavit, the applicant also attached a medical certificate dated 11 April 2019 which states:
This is to certify that: Mr [applicant] attended the clinic on 11 April 2019 with Backache and may be exempted from work on 11/04/2019.
At the hearing however the applicant said that the reason for his non-attendance at the first Court date on 3 April 2019 was because his wife had a heart condition and he was depressed as a consequence. In support of this assertion he was given leave to tender certain medical documents in relation to his wife (Medical Documents). The applicant denied his non-appearance on 3 April 2019 was because he was unwell as set out in his statutory declaration. He then retracted this denial and said that he did not attend the hearing because he was unwell and that he attended his doctor two days after the Court date for treatment. The Court put to the applicant that the medical certificate before the Court indicated that he attended his doctor on 11 April 2019 not on 5 April 2019 (being two days after the hearing). In response the applicant confirmed that he attended his doctor on 5 April 2019 not 11 April 2019. He then said that he was confused.
The applicant’s explanation for his failure to attend the first Court date on 3 April 2019 is inconsistent and contradictory. I consider there to be considerable doubt as to its truthfulness. However, even if the applicant was suffering from backache and flu on that day as declared in his statutory declaration, there is no probative evidence before the Court that this was such as to preclude him from attending the first Court date. The medical certificate does not so provide and does not cover the day of the Court date. Indeed, it post-dates the hearing by 8 days.
As to the applicant’s assertion that his wife was suffering from a heart condition and as a consequence he was suffering depression, even if the Medical Documents demonstrate that the applicant’s wife does have a heart condition there is no probative evidence before the Court that the applicant is or was suffering from depression or that this was such as to preclude the applicant from attending the first Court date.
As to the applicant’s claim that due to a “long illness” he was “unable to realise the hearing date”, firstly, the applicant had known about the first Court date since he filed his application as it was listed concurrently for directions. He had therefore known about the hearing date for over a year, as the hearing date was printed on his sealed application to the Court. Secondly, the applicant’s statutory declaration provides that his asserted illness began on 2 April 2019, being the day prior to the Court date. There is no evidence that the applicant attempted to contact the first respondent or the Court about his illness, nor was it of long standing at the time of the first Court date.
Accordingly, I do not consider that there is a reasonable excuse for the applicant’s non-attendance at the first Court date on 3 April 2019. This weighs against reinstatement.
Prejudice
The Minister did not contend it would suffer any particular prejudice if the substantive application were reinstated, save as to the general public interest in the finality of administrative decisions.
However, I do not consider the absence of prejudice to weigh in favour of reinstatement. Rather, I consider it to be a neutral consideration.
Prospects of success of the substantive application
The applicant applied for judicial review of the Authority’s decision on 29 March 2018.
The substantive application contains the following grounds for judicial review (without amendment):
1.The Immigration Assessment Authority’s finding that the applicant being a bilingual Catholic Sinhalese from a Sinhalese Settlement in the Northern Province of Sri Lanka with past links to Tamils and LTTE would not give rise to any adverse interest by the Authorities was not supported by any evidence. Such finding was so illogical and unreasonable and triggered jurisdictional error.
2.The Immigration Assessment Authority has not assessed the applicant’s integer claim that he will be persecuted due to the data breach caused by the Australian authorities.
3.The Immigration Assessment Authority erred in its finding that the applicant was not complied with s.473DD of the Act.
In addition, at the hearing, the applicant submitted that the Authority failed to take into account the following matters:
·the applicant went to two different countries because he could not return to Sri Lanka with his passport;
·the applicant spent time in refugee camps;
·the applicant was a refugee in different countries and had been in two different refugee camps;
·the boat the applicant arrived on was in his name;
·the government in Sri Lanka suspects he has connections to the LTTE; and
·the applicant believes the information involved in the data breach is known to the Sri Lankan government (Collectively, ground 4).
Ground 1
By ground 1 the applicant submits that the Authority’s finding that the applicant’s profile as a bilingual Catholic Sinhalese from a Sinhalese settlement in the Northern Province, with past links to Tamils and LTTE would not give rise to any adverse interest in the applicant by the Sri Lankan authorities was not supported by any evidence and was illogical and unreasonable.
A finding of illogicality or irrationality is a high bar and requires more than emphatic disagreement with the Authority’s decision: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124], [129] (SZMDS). The test is whether the decision is one at which no rational or logical decision maker could arrive on the same evidence, or, whether it was “open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did on the material before it”: SZMDS at [130], [133].
As set out above, at paragraph [35] of its decision the Authority concluded as follows:
Based on the evidence before me, I find that the applicant’s profile as a bilingual Catholic Sinhalese from a Sinhalese settlement in the Northern Province, with past friendship links to Tamils – including Tamils connected to the LTTE – in the early 1990’s, would not give rise to any adverse interest in him by the Sri Lankan authorities. I am satisfied that the applicant can return to Sri Lanka and would not face a real chance of harm by any of the Sri Lankan authorities.
That conclusion must be read in light of the Authority’s earlier findings.
As already set out, at paragraphs [15] – [28] of its decision the Authority made findings of fact. The Authority sets out its reasons for those findings of fact. On the material before the Authority, I consider those findings were open to the Authority. Those findings of fact were then referred to in paragraphs [31]-[34] of the Authority’s decision.
Relevantly, at paragraph [32] of its decision, after noting that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE, the Authority referred to the 2013 Upper Tribunal (Immigration and Asylum Chamber) decision and country information and the categories of people at risk of persecution or serious harm. As to these matters, the Authority found as follows:
…The applicant has not claimed to have ever been critical of the Sri Lankan government or associated with publication that are critical of the Sri Lankan government. Likewise, the applicant has not claimed to have given evidence to the Lessons Learned and Reconciliation Commission.
At paragraph [33] of its decision the Authority said:
I did not accept that the SLA started looking for the applicant or that the SLA suspected the applicant was an informer for the LTTE movement. I did not accept that the Sri Lankan authorities ever visited the applicant’s family. I did not accept that the applicant travelled to Lebanon some seven years after the SLA camp was attacked because he feared for his safety. I did not accept that the applicant moved around from place to place to avoid the Sri Lankan authorities between 2001 and 2003. I did not accept that the applicant went to Malaysia because he was under suspicion of the SLA and was scared. I did not accept that the applicant was fishing in Deundara from 2005 to 2012 to avoid the Sri Lankan authorities. I therefore do not accept that, at any time, the applicant was imputed to have had any LTTE or separatist links.
At paragraph [34] the Authority referred to country information that indicates that there is a centralised Department of Immigration and Emigration database that maintains an up to date stop and watch list and said:
…Stop lists includes name of people that have extant court orders, arrest warrants or an order to impound their Sri Lankan passports. Watch lists includes name of people that the Sri Lankan authorities consider to be persons of interest; including separatists or criminal activities. I did not accept that the applicant bribed an immigration officer or that Minister Feranandoupulle intervened to ensure the applicant left and entered Sri Lanka via the airport without incident. I have found the applicant left and entered Sri Lanka via the airport without incident in 2000, 2001, 2003 and 2005.
Accordingly, paragraph [35] mut be read in light of the Authority’s earlier findings, and in particular the country information referred to and the Authority’s findings that it did not accept that the applicant had any LTTE links. I therefore accept the Minister’s submission that the authorities finding at paragraph [35] were not ones which could be said to lack a logical connection between the evidence and reasons of the Authority nor are they ones to which no reasonable decision-maker could have come. The Authority’s findings were open to it on the available evidence for the reasons it gave.
Ground 1 therefore has no reasonable prospects of success.
Ground 2
By ground 2 the applicant submits the Authority did not assess the applicant’s integer claim that he would be persecuted due to the data breach.
This ground must be rejected.
At paragraph [9] of its decision the Authority noted the data breach claim was a new claim provided in the submissions on 4 August 2017, saying, relevantly:
To the extent that the submissions provided on 4 August 2017 argue errors and/or omissions in the delegate’s decision based on the information that was before the delegate, I have had regard to it. The submissions contained the following new claims:
•The applicant’s information was subject to a Department of Immigration and Border Protection (DIBP) data breach. He fears information about him owning the boat and riding the boat to Australia could also be leaked and fall into the hands of the Sri Lankan authorities.
…
At paragraph [36] of its decision the Authority noted that in February 2014, over a period of about 8 and a half days, certain details of approximately 9,250 people were inadvertently published on the Department of Immigration and Border Protection’s (DIBP) website. The Authority accepted that details about the applicant were capable of being accessed on the DIBP’s website during that period saying:
…However, even if the data breach had not occurred, those details – apart from details about when and where the applicant was detained – would have been evident to the Sri Lankan authorities upon his return to Sri Lanka. The applicant has not claimed, and there is no evidence before me to indicate, that the applicant has become of interest to the Sri Lankan authorities because of the data breach. Likewise, the applicant has not claimed, and there is no evidence before me to indicate, that DIBP has had any further data breaches since February 2014.
At paragraph [37] of its decision the Authority said:
I accept that the applicant left Sri Lanka illegally on 10 September 2012. I also accept that by the DIBP data breach and/or manner of his return, the Sri Lankan authorities may know or infer that the applicant made a claim for protection in Australia, and that he will be subject to background checks on arrival. DFAT advises that a returnee like the applicant will be processed at the airport by the Department of Immigration and Emigration (DOIE), the State Intelligence Service (SIS) and the Sri Lankan CID who check for identity and any outstanding criminal matters. DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred. DFAT also reports that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce. In his SHEV application the applicant stated that he had never been charged, convicted or wanted for an offence in Sri Lanka. I am satisfied that the applicant has no identity concerns, or criminal or security records that would raise the concern of the authorities. I am satisfied that the applicant would not be at risk of serious harm during, or as a consequence of this routine investigation. The evidence before me does not suggest that asylum seekers, including Sinhalese asylum seekers face a real chance of harm for that reason. I am not satisfied, having regard to the applicant’s profile, that he faces a real chance of any harm as a returning asylum seeker.
At paragraph [38]-[40] the Authority considered whether the applicant would be charged under Sri Lanka’s Immigrants and Emigrant Act (I&E Act) as a result of information contained in the data breach coming to the attention of the Sri Lankan authorities and the potential consequences of any such charges. The Authority found that there was no real chance that the applicant would be given a custodial sentence and if any fine, surety or guarantee was imposed, the Authority was satisfied that that would not constitute serious harm. Further, the Authority found that any treatment of the applicant under the I&E Act was not discriminatory conduct but rather application of law which applies to all Sri Lankans.
At paragraph [45] of its decision the Authority said:
I have considered the applicant’s claims individually and cumulatively and found that the applicant does not face a real chance of serious harm if he returned to Sri Lanka for reason of his residence in a Sinhalese settlement, being bilingual, his past friendships with Tamils, being subject to a DIBP data breach or having sought asylum in Australia. The “real risk” test in the complementary protection provisions imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear”.
Accordingly, contrary to the applicant’s submission, the Authority expressly considered this claim but concluded that the applicant would not be of any interest to the Sri Lankan authorities because of the data breach and therefore did not accept that the applicant would face a real chance of harm on this basis. Those findings were open to the Authority for the reasons it gave.
Ground 2 therefore has no reasonable prospects of success.
Ground 3
By ground 3 the applicant submits that the Authority erred in its application of the tests under s 473DD of the Act and thereby in its refusal to consider new information.
In this regard, the Authority refused to consider:
·pages of the applicant’s passport that were not before the Delegate (Passport Pages); and
·the applicant’s new claim that he was interviewed by three Australian police officers on Christmas Island and told them that he was the driver of the boat, and that he did not tell them he was the owner of the boat because of fear (Boat Claim).
It is useful to first set out the presently relevant section of the Act.
Section 473DB(1) of the Act provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the material provided to the Authority under section 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
Section 473DC(1) of the Act provides as follows:
(2)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
Section 473DD of the Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The correct approach to considering new information pursuant to s 473DD was set out in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) where, at [12] – [13] the High Court said:
Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist 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). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) (footnotes omitted).
In relation to the Passport Pages at paragraph [9] of its decision, the Authority found that:
·firstly, the Passport Pages not before the Delegate could have been provided prior to the Delegate’s decision and that the new information therefore did not meet the requirements of s 473DD(b)(i);
·secondly, the new information about the Passport Pages had little to no probative value and was not satisfied that had the Delegate known about that new information, it may have affected the consideration of the applicant’s claims. As such, the new information did not meet the requirements of s 473DD(b)(ii); and
·thirdly, given the applicant was told to provide copies of every page of his passport during his SHEV interview, and the little to no probative value of that new information, no exceptional circumstances existed to justify its consideration. As such, the requirements of s 473DD(a) were not met.
In relation to the Boat Claim, at paragraph [10] – [12] of its decision, the Authority found that:
·firstly, the Boat Claim related to events that predated the Delegate’s decision and were within the applicant’s personal knowledge. The new information in the Boat Claim could have been provided prior to the Delegate’s decision and that the new information therefore did not meet the requirements of s 473DD(b)(i);
·secondly, in the context of the applicant’s inconsistent evidence, the new information was not credible personal information and therefore the new information did not meet the requirements of s 473DD(b)(ii); and
·thirdly, no exceptional circumstances existed to justify consideration of the new information. As such, the requirements of s 473DD(a) were not met.
On this basis the Authority concluded it was not able to consider the new information.
Accordingly, I discern no error in the manner in which the Authority applied the tests in s 437DD(a) and (b) and no error in the Authority’s refusal to consider this information. I consider the approach taken by the Authority to be consistent with the approach set out by the High Court in AUS17.
For completeness I accept the Minister’s submissions that the Authority considered the significance of the information to the applicant’s claims and evidence before it and did not narrow its consideration of s 473DD(a) to consideration of why the information was not disclosed earlier: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [104], [112] (BBS16); BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [41] (BVZ16); or apply an unduly narrow construction of “exceptional circumstances”: BBS16 at [105]; BVZ16 at [34] – [35].
Ground 3 therefore has no reasonable prospects of success.
Ground 4
As to the matters asserted in Ground 4:
·the applicant did not claim that he went to Lebanon and Malaysia because he could not return to Sri Lanka with his passport. Rather, he claimed he went to Lebanon and Malaysia because he feared for his safety. The Authority considered these claims at paragraphs [24] and [26] of its decision and rejected them. Further, the Authority did not accept that the applicant travelled to Lebanon on a fraudulent passport and the applicant’s evidence was that he returned to Sri Lanka for two to three years after he left Lebanon and again from 2005 until 2012 after he left Malaysia;
·the applicant did not claim that he spent time in refugee camps in two countries. He claimed to have registered with the United Nations High Commissioner for Refugees (UNHCR) in Malaysia in 2003 and to have been in a Malaysian refugee camp from 25 September 2003 until 25 February 2005. The Authority accepted the applicant had registered with the UNHCR in Malaysia in 2003 at paragraph [26] of its decision;
·the Authority considered matters to do with the boat on which the applicant arrived, including his asserted ownership of the boat and the evidence provided in support of that ownership at paragraphs [16]-[19] of its decision. At paragraph [19] of its decision the Authority said:
There is no plausible reason for Parts 1 and 2 of the boat book not to be signed and dated. DFAT assesses that document fraud is prevalent in Sri Lanka and attempts to use fraudulent documents are common. Given the applicant’s inconsistent evidence, his failure to mention owning the boat prior to the SHEV interview, the internal inconsistencies in the document and the prevalence of fraudulent documents in Sri Lanka I am not satisfied that the documents pertaining to the applicant owning the boat are genuine. I accept that the applicant cooked and sometimes drove the boat on his journey to Australia in return for not having to pay the final three Lakhs. I do not accept that the boat was transferred to the applicant’s name before he left Sri Lanka…
·the Authority considered the applicant’s claims in relation to the LTTE at paragraphs [21] and [31]-[35] of its decision and rejected them for the reasons set out therein and which are set out above; and
·the Authority considered the data breach and the consequences feared by the applicant arising from that breach at paragraphs [36]-[40] of its decision. I refer to and repeat the matters set out in relation to Ground 2 above.
Ground 4 therefore has no reasonable prospects of success.
Accordingly, even at an “impressionistic level” the grounds relied upon in the substantive proceeding have no reasonable prospect of success. This weighs against reinstatement.
DISPOSITION
Accordingly, it follows that having taken into account all the relevant factors, I do not consider that the interests of the administration of justice call for the reinstatement of the application and I order that the reinstatement application filed on 15 April 2019 be dismissed.
The first respondent seeks an order that the applicant pay their costs. I shall order that the applicant pay the first respondent’s costs in an amount to be fixed if not agreed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 14 December 2023
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