BSR18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1072
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSR18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1072
File number(s): SYG 940 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 21 October 2024 Catchwords: MIGRATION – protection visa – application for review of decision of the then Immigration Assessment Authority – failure to consider new information that was not before the delegate – whether Authority misconstrued or misapplied the test for consideration of new information pursuant to s.473DD – jurisdictional error established – application allowed. Legislation: Migration Act 1958 (Cth) ss. 36, 65, 473BA, 473DA, 473DB, 473DD, 473EA, 474, 476
Federal Court Rules 2011 (Cth) r.12.01
Migration Regulations 1994 (Cth) reg. 1.12
Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272
Craig v South Australia (1995) 184 CLR 163
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submissions: 10 September 2024 Date of hearing: 2 September 2024 Place: Sydney Solicitor for the Applicant: Mr Hodges of Hodges Legal Counsel for the Respondents: Mr Cleary Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 940 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSR18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
21 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
2.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 8 March 2018 in file IAA17/03952.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
4.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka of Tamil ethnicity who sought a protection visa on the basis of claims to fear harm due to her past involvement with a militant group, by reference to past harm she has suffered.
The Applicant now seeks judicial review of an administrative decision to affirm an earlier decision to refuse her a protection visa.
The Applicant’s parents simultaneously sought review of a separate decision of the Authority to refuse them a protection visa. As the decisions under review are distinct the reasons stand alone yet bear similarities to the extent of common facts and issues of law.
For the reasons that follow, this application allowed.
CONTEXT
On 1 May 2013, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 30 May 2017, the Applicant was named as the third applicant on an application for a safe haven enterprise (subclass 790) visa (subject of this application, the protection visa). The other applicants were the Applicant’s father and mother.
On 23 October 2017, in response to a departmental letter of 17 October 2017 which advised that the Applicant could not be considered part of the same family unit on account of her marriage (pursuant to reg.1.12 of the Migration Regulations 1994 (Cth) (Regulations), the Applicant sought a separate assessment to that of her parents. The Applicant was not required to file a separate application form but rather her statutory declaration sworn 20 October 2017 (and submitted 23 October 2017) was accepted as her separate statement of claims: a procedure adopted under the then Protection Visa Processing Guidelines as at October 2017 and about which no issue is taken in these proceedings.
On 21 November 2017, a delegate of the First Respondent refused to grant the Applicant a protection visa. On that same day, by separate decision record, the First Respondent also refused to grant the Applicant’s parents a protection visa.
On 23 November 2017, the delegate’s decision to refuse the Applicant a protection visa was referred to the then Immigration Assessment Authority (Authority) for review.
On 15 December 2017, the Applicant’s then representative sent an email to the Authority which attached submissions described as made in response to the delegate’s decision regarding the review matter. Attached to that email was some new information and a submission as to why the Authority ought consider the new information in undertaking its review.
On 8 March 2018, the Authority affirmed the delegate’s refusal decision in relation to the Applicant. At [4] to [34] of those reasons, the decision maker identified the materials that had been considered and not considered in conducting its review. This application for judicial review is concerned with those particular paragraphs.
APPLICATION BEFORE THE COURT
On 6 April 2018, the Applicant filed an originating application for judicial review of the Authority’s decision accompanied by a short affidavit of the Applicant.
On 1 May 2018, a response was filed on behalf of the First Respondent by which it was contended that the application be dismissed.
Various procedural orders were then made.
In addition to the originating materials, on 22 August 2024 the Applicant filed an outline of written submissions on which she sought to rely.
The First Respondent also filed a court book, an outline of written submissions on which they sought to rely and a submitting notice pursuant to r.12.01(1) of the Federal Court Rules 2011 (Cth).
The matter proceeded to final hearing before the Court as presently constituted on 2 September 2024. The Applicant was represented by a solicitor advocate and the First Respondent was represented by Counsel.
Statutory context
A “privative clause decision” as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act was arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commenced with a self-described “simplified outline” at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that was efficient, quick, free of bias and consistent with Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it could consider new material and could invite a referred applicant to provide, or comment on, “new information”.
Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at s.473DD, concerned how the Authority may “consider” new information that was not before the Minister when the decision was made under s.65:
473DD Considering new information in exceptional circumstances
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.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
CONSIDERATION
At the time of hearing, there was one ground of review pressed by the Applicant in the following terms:
1.The Authority committed jurisdictional error by incorrectly applying the test for the consideration of new information pursuant to s 473DD of the Migration Act 1958 (Cth).
PARTICULARS
a.At paragraph 17, the Authority noted that the applicant had provided what it considered to be 'new information' about her involvement with the L TTE in a statement dated October 2017.
b.The Authority noted that the applicant was given opportunities to provide any further infom1ation and considered that the applicant's failure to do so meant that the test set out in s 473DD was not satisfied.
c.In her statement, the applicant explained that she had not provided this information because her former representative instructed her and warned her that the Australian government would refuse her application on the basis that she was a 'dangerous terrorist'.
d.The Authority noted, at paragraph 17, that it did not accept this assertion.
e.At paragraph 18, the Authority reasoned that the applicant and her parents had already disclosed that her two siblings were part of the LTTE and that they may be considered to be LTTE since they were detained in a rehabilitation camp. This finding assumes that making a claim about having imputed links to the L TTE is not different from making a claim about a deep connection to the LTTE that ranges all the way back to the age of 15.
f.In addition, it should be noted that the applicant's siblings are not making a claim for protection in Australia so it does not follow that the Authority considered that the fact that the applicant had disclosed their involvement and not hers was a reason to reject the applicant’s submission that she has not provided the information out of fear that her application for protection would not be accepted.
g.The Authority adopted a nan-ow interpretation of 'exceptional circumstances' and failed to consider factors other than the applicant's prior lack of disclosure.
(sic.)
Applicable principles
The established principles have developed since the Authority’s decision in this matter, but nonetheless apply to the present case and were not contentious.
The High Court of Australia in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) outlined the proper approach to the assessment at s.473DD. The Authority was first to determine whether either of the limbs to s.473DD(b) were engaged and, only in the event of an affirmative engagement, may it have turned to consider whether it was satisfied that there were “exceptional circumstances” for purposes of s.473DD(a) and as to justify its consideration of the “new information”.
In undertaking the assessment of whether new information was “credible personal information” for purposes of s.473DD(b)(ii), the authorities make it clear that the threshold for what is “credible” is a relatively low bar - all that was required was that the Authority reach the state of satisfaction that the new information was information which was capable of being accepted as truthful or accurate or genuine, as distinct from an assessment of whether the new information was true: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [40]; subsequently endorsed by a majority of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 (BTW17) at [75]-[77] and since applied in DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530 at [57]. In BTW17, at [76]-[77], the Full Court included the following explanation of the task which is apt to the present case:
[76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa application (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority; they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
[77] Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority that new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
The Authority would not necessarily have erred if it decided to take into account the lateness of provision of “new information” in assessing what is “credible” in the context of s.473DD(b)(ii). However, some consideration was required to be given to the substance of the new information as to decide whether it was capable of being believed and it would be an error to treat a failure to disclose new claims to the delegate as “decisive” of the consideration at s.473DD(b)(ii): BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272 at [144] (BTA18).
Did the Authority misconstrue or incorrectly apply s.473DD?
The application before the Court takes issue with the Authority’s decision not to consider 3 of the 4 categories of the “new information” provided by the Applicant on 15 December 2017 which was not before the delegate.
The Authority’s decision record commenced with a short summary of the Applicant’s claims as before it: at [2]. Her claim was there expressed in terms that the Applicant claimed she was abducted by the LTTE, her family have an LTTE profile which is recorded by the authorities and she and her family have become targets of harassment, threats, intimidation and persecution.
The Authority commenced its consideration of the new information by summarising the substance of it: [13]-[16] of the reasons.
At paragraphs [17] to [34] of the Authority’s decision record, each of the 4 categories of new information provided by the Applicants were rejected.
It is convenient to deal with each category of new information in turn.
The first category of new information: the further statements of the Applicant and her parents and LTTE photos
The Authority considered the new information comprising the statements of the Applicant and her parents which were dated 5 December 2017 and the LTTE photos provided 15 December 2017 at [17] to [19] of its decision record.
The Authority summarised the information comprising the new information to be derived from these new statements dated 5 December 2017 which were not before the delegate as follows:
(a)The Applicant and her parents’ previous lawyer had warned them their application could be refused as being dangerous terrorists if they disclosed their involvement with the LTTE, receiving training and participating in battles: at [14];
(b)The Applicant’s family moved to Vanni in 1996 to be close to their son who was a member of the Sea Tigers; the Applicant’s father performed duties for the LTTE, initially in propaganda for recruitment and then transporting injured combatants to hospital, and explosives to battlefronts and he was injured in 1997 as a result of army aerial attack and received self-defence training; the parents joined the prescribed training LTTE programme; the Applicant’s mother was detained with Rose Theresa at Kaithady camp and they underwent several tortures and death threats and were permitted to return home under army surveillance; and when the Applicant’s father was a bus driver and at checkpoints he was detained many times: at [14]; and
(c)The Applicant had joined the LTTE at 15 years of age; underwent weapons training for 3 months; carried weapons and engaged in many battlefronts, including under Lt. Col. Aarthi; she received extensive injuries in November 2006 at Puliyankulam battlefront; in August 2007 she was transferred to Lt. Col. Navam Science Institute and underwent computer, draftsmanship, politics and making of battlefront sketches; in January 2008 she was drafted into a combat unit and led a group of combatants and engaged in direct battles; in the Manthuvil battle in January 2009 the daughter sustained extensive injuries to her arm and was unable to return to the battlefront; she was arrested by the army in May 2009 and sent to Pompaimadu detention camp, where she was subject of severe torture and interrogation on a daily basis, isolation in dark rooms, lack of food and sexual overtures; and due to injuries the army permitted her to return home in April 2010 whereafter she received death threats from the army and was constantly monitored by the authorities until she had left for Australia: at [15]; and
(d)The Applicant provided 2 battle photos although it was not possible to discern if it was the Applicant and a photo in her uniform with her mother and a child at [15].
The Authority’s assessment of this new information against the filters at s.473DD is found:
(a)At [17], where the Authority was not satisfied that s.473DD(b)(i) was met because the statements and the photos related to past events and could have been provided earlier;
(b)At [18], where the Authority then considered s.473DD(b)(ii) and did not accept that the information was “credible” information for 4 reasons:
(i)First, the Authority considered that the Applicant and her parents had plenty of opportunity to provide the information subject of these new statements as the matters were discussed at the protection interview. The Authority expressly considered the fact they are being mentioned now to lead the decision maker to doubt the genuineness of the claims subject of the new information.
(ii)Second, the Authority observed the inconsistency in the claims subject of the new information where the information that was before the Authority reflected the Applicant and her parents had continuously reiterated that the Applicant’s father was not involved with the LTTE and that the family had moved to distance themselves from the son who joined the LTTE.
(iii)Third, the Authority did not accept the Applicant’s explanation for the late provision of the new information (and that of her parents, regarding the claimed lawyer’s advice) by reference to the detail and family linkages to the LTTE that the Applicant and her parents had given at their arrival interviews.
(iv)Fourth, the Authority considered the history and evolution of the Applicant’s and her parent’s claims. Specifically, their earlier confession that they had not fully disclosed at interview when substantially amending their claims for inclusion in their protection visa application. It was against that context that the Authority considered the provision of the new information before it to be yet another attempt to evolve and expand their claims to enhance the protection claims, a further attempt to add new claims at a late stage despite confirming they had fully disclosed in their visa application in October 2017; and
(c)At [19], a brief conclusory statement that the Authority had not considered the information.
In the present case, the Authority approached its task under s.473DD in the correct order according to the guidance in AUS17 and, as neither limb of s.473DD(b) was satisfied, the Authority was not required to go on to consider that at s.473DD(a).
Turning then to how the Authority approached its assessment of what was “credible” for the purposes of s.473DD(b)(ii).
Whilst the failure to put the new information before the delegate was given consideration, the reasons plainly reflect that the Authority did not confine its assessment to that single fact.
It was relevant that this category of new information was within the knowledge of and provided by the Applicant and her parents who had themselves made claims at protection interview and amended those claims, in detail, in their visa applications. The Authority properly took into account fundamental inconsistencies in the new information with the other information that was before the Authority, as well as the pattern and history of substantial amendment to the Applicant’s substantive claims as relevant to whether the information was not capable of being believed for purposes of s.473DD(b)(ii).
The Authority found cause to doubt the genuineness and credibility of this first category of new information. Whilst this is not the strongest of expressions, in my view, a fair reading of these reasons is that the Authority assessed that this new information was not capable of being accepted as truthful or accurate or genuine; and it did so at the threshold level as distinct from assessing the accuracy or truth of the information.
Accordingly, there is no demonstration of error in the Authority’s decision to reject the new information subject of this first category of new information.
Second category of new information: the statement of the Applicant’s friend
The Authority considered the new information comprising the statement of the Applicant’s friend which was provided to the Authority on 15 December 2017 at [20] to [24] of its decision record.
At [16], the Authority summarised the relevant information comprising the new information to be derived from the statement of the daughter’s friend in the UK dated 9 December 2017 which was not before the delegate, as follows:
(a)The friend confirmed she knew and had met the Applicant at an LTTE camp;
(b)The friend’s LTTE name was the same as the Applicant’s LTTE name;
(c)The Applicant led 30 to 40 women fighters and was injured in a battle;
(d)The friend visited the Applicant in hospital and after that did not see her again; and
(e)The friend received calls from the Applicant a number of times including at the end of 2011, in February 2016 and recently (as at the time of the Authority’s reasons).
The Authority’s assessment of s.473DD is found:
(a)At [20], where the Authority conducted its assessment of s.473DD(b)(i) and was satisfied that limb was met because the friend’s statement was dated after the delegate’s decision and to that extent could not have been provided to the delegate;
(b)At [22] to [23], where the Authority then considered s.473DD(b)(ii) and did not accept that the information was “credible” information for 3 reasons:
(i)First, the Authority considered the late provision of the statement which lead it to doubt the genuineness of the claims;
(ii)Second, that the Applicant and her friend had been in contact with each other since 2011 and during 2016 and prior to the delegate’s decision, which caused the decision maker to find it difficult to believe that information from the friend was not provided earlier and served to further reinforce the view that it was not credible;
(iii)Third, that the statement was apparently obtained for the sole purpose of supporting the visa application and its contents all related to events that had occurred some time ago: at [21]; and
(c)At [23], where the Authority next considered the criterion at s.473DD(a) and was not satisfied of “exceptional circumstances” as to justify its consideration of this new information.
Again adopting the guidance set out in AUS17, the Authority also approached this task in the correct order and completed the assessment at s.473DD.
Having concluded that s.473DD(b)(i) was met, the finding at (b)(ii) was not necessarily fatal to the outcome of the s.473DD assessment. However, an error in respect of the process and finding at s.473DD(b)(ii) may have had a bearing on the “exceptional circumstances” assessment at s.473DD(a) as contemplated in AUS17 at [11].
In terms of the manner in which the Authority approached its assessment of what was “credible” for purposes of s.473DD(b)(ii), on a plain reading of [22] and [23], the Authority gave primary if not sole consideration to the late provision of this category of new information. The friend’s statement was created for the sole purpose of the protection visa application process meaning it was not a contemporaneous record. That is a factor that might be relevant to an assessment of the truth of its contents as a matter of fact but not of itself a basis to discount its contents as not capable of being believed.
Without more, at a threshold level, the late provision of the friend’s statement, the explanation for its lateness and that it could have been provided earlier was not a reason to find that it did not meet the criterion of “credible” at s.473DD(b)(ii). Contrary to the Applicant’s and parents’ new statements, the friend had not previously given inconsistent evidence or any evidence about those matters. The friend’s statement, if it were received as “new information” pursuant to s.473DD, would potentially have been corroborative of some of the Applicant’s claims.
For the above reasons, an error of jurisdiction is identified and this ground is made out in relation to this second category of new information.
The third category of new information: the medical letter
The Authority considered the new information comprising a medical letter dated 30 November 2017 and other medical evidence regarding the Applicant which was provided to the Authority on 15 December 2017, at [25] to [32] of its decision record.
The Authority’s assessment of the new information comprising the medical letter against the criteria at s.473DD is found:
(a)At [25], where the Authority considered the date of the medical letter as post-dating the delegate’s decision and therefore was satisfied that s.473DD(b)(i) was met;
(b)At [26], where the Authority noted that the letter reported that the Applicant had sustained injuries during the civil war but did not state they were sustained as an LTTE combatant or at the battlefronts; and
(c)At [26], concluded that the letter did not take matters further (having accepted that the Applicant’s injuries were incurred during the civil conflict) and also, having considered the circumstances, the Authority was not satisfied there were “exceptional circumstances” to justify considering the information.
The Authority’s assessment of the new information comprising the other medical evidence about the Applicant against the criteria at s.473DD is found:
(a)At [28], where the Authority was not satisfied that s.473DD(b)(i) was met because it pre-dated the delegate’s decision and could have been provided earlier;
(b)At [29], where it was accepted that the information was “personal information” but the bank statements could not have affected the Applicant’s claim because she was not a member of the family unit at that time;
(c)At [30], the Authority did not consider the medial evidence affected consideration of the Applicant’s claims because it had accepted the fact of her injuries and the subject records were not proof of injuries in respect of the LTTE claims and stated that the decision maker was not satisfied as to the matters at s.473DD(b);
(d)At [31], by reference to the aforementioned findings which were repeated here, found that there were not “exceptional circumstances” as to justify consideration of the new information.
In terms of its assessment of the new information for purposes of s.473DD, it is possible to discern from the reasons that the Authority adopted the approach outlined in AUS17 and did so in the correct order and completed all of the necessary steps.
The Authority had accepted that the Applicant had sustained injures and was correct to the extent that the documents comprising this third category of new information were not properly able to be received as evidence of the fact of her having sustained injuries as an LTTE combatant or at the battlefronts. Further, that the bank statements were not able to be received as proof of the Applicant’s circumstances once she was married. Accordingly, even if the Authority erred in its approach to the assessment of s.473DD in respect of this new information, I accept the submission that it was immaterial to the outcome.
The fourth category of new information: the country information
For completeness, the Authority’s reasons (at [33] to [34]) also addressed certain country information which referred to material that was provided by the Applicant to the Authority on 15 December 2017 with the Applicant’s submissions. The Applicant did not contend that there was an error in the approach that the Authority adopted to its assessment not to consider this category of information pursuant to s.473DD and there is no basis to find jurisdictional error in respect of the pleaded claim in this respect.
RESOLUTION
For the above reasons, the application is granted and relief will issue in the form of a writ of certiorari and a writ of mandamus directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law. There will be an order that the First Respondent pay the Applicant’s costs in the scale amount.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 21 October 2024
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