DPO16 v Minister for Immigration

[2019] FCCA 206

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPO16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 206

Catchwords:
MIGRATION – Visa – protection visa – whether Authority erred in failing to consider ‘new information’ – whether authority misconstrued the term ‘exceptional circumstances’ – whether Authority misconstrued ambit of term ‘credible personal information’ – error demonstrated – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD, 473DD(a) & (b), 473DD(b)(i) & (ii), 476 and Part 7AA

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192
BRA16 v Minister for Immigration and Border Protection [2018] FCA 127
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: DPO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 409 of 2016

Judgment of: Judge Heffernan

Hearing date: 6 March 2018

Date of Last Submission: 6 March 2018

Delivered at: Adelaide

Delivered on: 8 February 2019

REPRESENTATION

Counsel for the Applicant: Mr P Barnes

Solicitors for the Applicant: Bourne Lawyers

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. There be an order in the nature of certiorari that the decision of the Immigration Assessment Authority dated 18 November 2016 affirming the decision of the delegate of the first respondent made on 16 August 2016 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) subclass 790 visa is quashed.

2. There be an order in the nature of mandamus that the Immigration Assessment Authority review according to law the decision of the delegate of the first respondent dated 16 August 2016 rejecting the applicant’s application for a Safe Haven Enterprise (Class XE) subclass 790 visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 409 of 2016

DPO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act1958 (‘the Act’) for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 18 November 2016.  That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise (class XE, subclass 790) visa (‘the visa’).

2. The matter proceeded before me on the Amended Application filed on 9 June 2017 (‘the Application’).  The applicant was represented by counsel who indicated that ground 4 of the application was not pursued.  Grounds 1 to 3 are as follows:

   “1.The reviewer erred in finding that material put forward by the applicant with a submission from his representative dated 8 September 2016 did not satisfy the requirements of s 473DD(b) of the Act and in particular that the applicant had not demonstrated exceptional circumstances for their consideration and that consequently the reviewer erred in failing to consider material relevant to the applicant’s claim for protection.

   Particulars

   (a)The reviewer failed to consider the materials set out in paragraph 5 of the determination, namely

   a.    A 2015 report titled ‘The Long Shadow of War’;

   b.    An article dated 29 May 2015 from The Guardian;

   c.    An Article dated 8 May 2015 from the Colombo Telegraph;

   d.    A January 2016 report from "ITJP"; and

   e.    A 2015 report from the Society for Threatened People.

   (b)The reviewer failed to consider the items set out in paragraph 6 of the determination, namely two letters

   a.    from a Sri Lankan politician, Mavai S. Senathirajah MP dated 30 August 2016;

   b.    from the applicant’s sister written in September 2016.

   2.The reviewer's finding that the applicant did not face a real chance of harm on account of his actual or perceived links to the LTTE, namely by connection with a relative - his sister - who was and is regarded by the Sri Lankan Government as having been a former LTTE combatant, was illogical and/or irrational and/or one in respect of which there was no evidence.

   Particulars

   (a)The reviewer found, at [16] of the Decision, that one of the reasons he did not accept that the applicant’s sister was of “ongoing interest” as an actual or perceived former LTTE combatant, was that she was able to depart Sri Lanka on her own passport without encountering difficulties.

   (b)This was the basis for the finding, at [17] of the Decision, that therefore, the applicant was not a person “of interest” to the Sri Lankan authorities.

   (c)Notwithstanding that the reviewer accepted and purported to consider the representation from Ozsea PL dated 8 September 2016, which included the assertion that the sister had bribed her way out of Sri Lanka when she last departed, the reviewer made no reference to this assertion in his Decision, and in particular in reaching his findings at [16] & [17] of the Decision.

   3.Further and in the alternative to Ground 2, to the extent that the reviewer explicitly or implicitly rejected the applicant’s assertion that the sister had bribed her way out of Sri Lanka, and to the extent that he did so without having provided the applicant with an opportunity to respond to his doubts about this information, this was a denial of procedural fairness.

   4.The reviewer erred in finding that the applicant would not face a real risk of significant harm during any time spent in detention upon return to Sri Lanka on the ground that there was “no intention to inflict pain or suffering or extreme humiliation”: [37] of Decision.

   Particulars

   (a)The reviewer found that the applicant would be detained on arrival and potentially detained on remand for several days pending bail: [36]

   (b)The review further found that the applicant may be subjected to poor prison conditions during his detention: [37]

   (c)On the basis of this, the requisite intention is established by the fact that the Sri Lankan government is aware of the conditions in which the applicant will face if detained, and it is incorrect as a matter of law to require that the applicant show that the Sri Lankan authorities have an intention to inflict pain or suffering or extreme humiliation by the potential imprisonment/detention.  The requisite intention is made out even if the person or persons with the power to inflict or prevent the occurrence of the suffering do not intend that to occur.”

Background

1. For the purpose of setting out the background to this matter I have paraphrased the relevant paragraphs in the first respondent’s outline of submissions.

2. The applicant is a Sri Lankan citizen and of Tamil ethnicity. He arrived in Australia by boat on 28 September 2012. He applied for the visa on 2 November 2015. With the assistance of a registered migration agent he submitted a statutory declaration setting out his claims on 30 October 2015. On 2 March 2016, he attended an interview with the Department to discuss his application. A delegate of the Minister refused to grant him the visa on 16 August 2016. The matter was automatically referred to the Authority for review under Part 7AA of the Act.

3. The basis of the applicant’s claims is that he fears harm from the Sri Lankan authorities on account of his Tamil ethnicity; his imputed political opinion as a supporter of the LTTE; as a member of the particular social group of “Tamil males from the north with imputed LTTE links”; and as a failed asylum seeker who had left Sri Lanka illegally.  He claimed that in the past he had been arrested by the army for suspected LTTE links and handed to the police who further detained him for 3 days, during the course of which they beat him.  After that episode he was required to report weekly to the police.  Army and police officers would come frequently to his house to question him.

4. He discovered in 2009 that his sister had been detained in a rehabilitation camp as a suspected LTTE member.  She had apparently been forced to work in the accounts section of the LTTE.  Both police and the army subsequently visited his home and interrogated him about visits to, and contact with, his sister in the rehabilitation camp and her involvement with the LTTE.  Those visits continued even after his sister’s release.

5. After his sister’s release, the police attended at his father’s house to question the sister.  She fled to India in 2013.  Notwithstanding the sister having fled, police apparently continued to visit the applicant’s wife up to twice every month.  The applicant claimed that he had not been permitted to return to his home village for 25 years as the authorities refused to return his land.

6. Before the Authority, the applicant sought through his agent to provide additional documents together with a written submission.  The documents were:

   a)   A deed for land;[1]

   b)     A letter from the applicant’s sister;[2]

   c)     A letter from a Sri Lankan politician;[3] and

   d)     Further country information.[4]

   [1]     Court Book (‘CB’) pp 197 to 199.

   [2]     CB p 200.

   [3]     CB p 201.

   [4]     CB pp 202 to 205.

7. It is those documents that are relevant to the grounds of review and the consideration by the Authority as to whether to consider new information pursuant to s.473DD.

8. As the grounds are confined to issues relating to those documents I will, for the purpose of this summary, refer only to the relevant passages from the Decision Record of the Authority.  The Authority considered those parts of the submissions that were responsive to the decision and reasons of the delegate.[5]

   [5] CB p 220 at para [4].

9. The authority declined to consider the country information as it had not been before the delegate and those parts of the submissions that dealt with it:

   “The submission refers to a 2015 report titled ‘The Long Shadow of War’, an article dated 29 may 2015 from The Guardian, an article dated 8 May 2016 from the Colombo Telegraph, a January 2016 report from ‘ITJP’ and a 2015 report from the Society for Threatened People. The submission also includes items of country information regarding conditions for Tamils in Sri Lanka, all dated before the delegate’s decision. None of these sources was before the delegate and accordingly are considered to be new information. No explanation was provided as to why this new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant’s claims. As a result I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.”[6]

   [6] CB p 220 at para [5].

10. With respect to the letter from the MP and the applicant’s sister, the authority found:

    “Included in the submission is a letter from Mavai S. Senathirajah MP dated 30 August 2016 and a letter from the applicant’s sister, which appears to have been written in September 2016.  Both letters post-date the delegate’s decision and are therefore new information.  I accept that these letters could not have been provided before the delegate’s decision, however as the information they contain relate to matters that predate the delegate’s decision and appear to be provided in verification of those events, I am not satisfied that there are exceptional circumstances to justify their consideration.”[7]

    [7] CB p 220 at para [6].

11. The Authority did find exceptional circumstances justifying it considering the deed for land.[8]

    [8] CB p 220 at para [7].

12. Later, in the course of considering whether the applicant had a well-founded fear of persecution the authority made the following findings:

    “I accept that the applicant’s sister was released from detention in October 2010. While she may have been imputed with the profile of an LTTE combatant due to her cropped hair, her release in 2010 indicates that the authorities were satisfied that she had a low profile and was no longer considered a threat and no longer of interest. I accept that the applicant’s sister departed Sri Lanka in 2013 and now resides in India. The applicant provided vague, ambiguous information when asked at the PV interview what prompted his sister’s departure from Sri Lanka. While he claims his sister was targeted for questioning by CID because she had been in a rehabilitation centre, he was unable to provide any information about what was being asked, stating ‘She didn’t share all the questions with me because they might ask some inappropriate questions.’ The applicant stated that neighbours started to create rumours that his sister was ‘...not a good lady ... That’s why she left the country.’ I accept the information in the IAA submission that the applicant’s sister may have received assistance obtaining a passport. Country information is that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those for whom there is an extant court order, arrest warrant or order to impound their Sri Lankan passport while ‘watch’ lists include names of those for whom Sri Lankan security services consider to be of interest, including for separatist or criminal activities. The applicant states that apart from general questions around the purpose of her trip to India, the applicant’s sister encountered no difficulty when departing Sri Lanka in 2013. The applicant has claimed that his sister was of such ongoing interest to Sri Lankan authorities that she was continually questioned and monitored, however I find it implausible that a person of such interest would nevertheless be able to depart Sri Lanka using their own passport through an international airport without encountering difficulties. I do not accept that the applicant’s sister is of an ongoing interest to Sri Lankan authorities.”[9]

    (emphasis added)

    [9] CB pp 223 to 224 at para [16].

Statutory framework

1. The term ‘new information’ is defined in s.473DC as:

   “(1)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.”

2. The Authority has no duty to get, accept or request new information in any circumstances.[10]  It may invite a person to give new information.[11] The preconditions to the Authority considering new information are set out in section 473DD:

   [10] Section 473DC(2).

   [11] Section 473DC(3).

   “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.”

Submissions

Applicant

1. For the applicant, Mr Barnes submitted that with respect to the country information[12] there were two matters that pointed to jurisdictional error on the part of the Authority.

   [12] Decision and Reasons at para [5].

2. Firstly, the absence of an explanation from the applicant did not absolve the Authority from considering whether s.473DD was satisfied. It was open to the Authority to seek an explanation from the applicant before making a decision.

3. Secondly, the reasoning of the Authority suggests that it regarded the factors set out in subparagraph (b) to be exhaustive of whether ‘exceptional circumstances’ existed.

4. With respect to the two letters, Mr Barnes submitted that the Authority misread s.473DD(b)(ii). There was nothing in the provision to suggest that credible personal information which was not previously known must be confined to events post-dating the delegate’s decision. That term is sufficiently wide as to encompass information which pertains to events pre-dating the first instance decision, but still provides additional support for an applicant’s claims.

5. Further, Mr Barnes submitted there was no basis to reject further information on the ground that it simply provided a verification of the factual events claimed by the applicant. In any event it was an error on the part of the Authority to characterise both of those documents as simply being provided in verification of the events they referred to. The fact relating to the sister being forced into bribery was, properly understood, new information not previously known to the applicant. That information was plainly of importance and may have altered the Minister’s decision. As a result, the Authority committed jurisdictional error by reason of a misconstruction and misapplication of s.473DD and failed to discharge its obligation to conduct a review.

6. As to ground 2, the applicant contends that it was clear from the reasons of the Authority that the reviewer did not take into consideration that part of the agent’s letter asserting that the applicant’s sister had to resort to bribery in order to leave Sri Lanka.  That was in itself an error which caused the Authority to further err in its analysis at paragraph 16 and its conclusion at paragraph 17.

7. Such failure, it was submitted, rendered the decision illogical, irrational and/or based on no evidence.

8. Finally, with respect to ground 3, that ground was predicated on the possibility that the Authority was uncertain as to the meaning and significance of the information about the applicant’s sister being reduced to bribery to obtain a passport. In that event, the Authority had power, pursuant to s.473DC, to obtain new information and in failing to do so, failed to make an obvious inquiry.[13]

   [13]    Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at para [25].

First Respondent

1. For the Minister, Mr Tredrea submitted that, contrary to the applicant’s contention, the Authority was not required to consider both subparas 473DD(a) and (b).  That submission was, he asserted, consistent with the decisions in BVZ16 v Minister for Immigration and Border Protection[14]; Minister for Immigration and Border Protection v BBS16[15]; CHF16 v Minister for Immigration and Border Protection[16]; and BRA16 v Minister for Immigration and Border Protection.[17]

   [14] [2017] FCA 958.

   [15] [2017] FCAFC 176.

   [16] [2017] FCAFC 192.

   [17] [2018] FCA 127.

2. That was so, because the Authority had dealt with at least one of the limbs when it dealt with both types of ‘new information’ in paragraphs 5 and 6 of its reasons.

3. With respect to the country information referred to in paragraph 5, Mr Tredrea submitted that it was clear that the Authority had considered the criteria in both subparas 473DD(b)(i) and (ii). The chapeau to subpara (b) placed an onus on the applicant to satisfy the Authority of either of the matters in subsection 1 or 2. In the absence of so satisfying the Authority, it was clearly open to it to find that s.473DD(b) had not been met. In this case, it did so and that was dispositive of the matter and it was not an error to fail to consider the subpara 423DD(a) ‘exceptional circumstances’ criterion.

1. As far as the letters were concerned, the first respondent submitted that the approach taken by the Authority was precisely that required of it identified in BVZ16 and BBS16. He submitted that the Authority at least considered whether subpara 473DD(a) was or was not met. He submitted that it was at least open for the Authority to conclude as it did that the applicant had not demonstrated that there were any unusual or out of the ordinary circumstances and that the Authority was under no duty to give reasons as to why it was not satisfied with the matters described in s.473DD.

2. With respect to ground two, the first respondent submits that the Authority made no finding that the applicant’s sister did not resort to bribery in order to obtain a passport.  Rather, it found that having obtained a passport, she was able to leave Sri Lanka unhindered.  Such a finding was, it was submitted, consistent with the applicant’s claims.

3. For the same reasons, the first respondent submitted that ground 3 was also misconceived.

Consideration

Ground 1

1. In considering s.473DD, White J described the operation of that section as follows:

   “As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.

   The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.”[18]

   [18]    BVZ16, op cit at paras [8] & [9].

2. Later in the judgment his Honour had this to say:

   “It is understandable that the IAA member would have wished to scrutinise closely the applicant’s late disclosure of the new information. The circumstances in which the claims were made gave rise naturally to questions about their veracity. That understanding and the content of [6], [7] and [8] indicate that the IAA member was engaged in an examination of the veracity of the appellant’s explanation, rather than in some more general evaluation of the material against either of the subpara (b)(i) or (b)(ii) criteria.

   Having rejected both explanations for the late disclosure of the new information, the IAA member then immediately expressed her conclusion in [9] that there were not exceptional circumstances justifying the consideration of the new information. In these circumstances, I do not consider that it can be concluded that the IAA member considered the significance of the new information in the light of the appellant’s personal circumstances more generally or the way in which the claims in the new information related to the earlier claims made by the appellant.

   The IAA member’s findings in [7] and [8] would have enabled her to conclude that the new information could have been provided to the Minister before the time of the delegate’s decision with the effect that the subpara (a) requirement was not satisfied. However, it seems significant that the IAA member did not express her conclusion in those terms. Instead, the member used only the terms of s 473DD(a). Moreover, and in any event, there is no indication that the IAA member considered the new material having regard to the criterion stated in subpara (b)(ii).”[19]

   [19] Ibid at paras [33] – [35].

3. His Honour’s reasoning was applied by the Full Court in BBS16:

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

   We also respectfully agree with White J’s conclusion and reasons for rejecting the Minister’s claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection. This is made clear by [29] of the Supplementary Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which, in addressing revised paragraph 473DD of the Bill said (emphasis added):

   This new provision will extend the types of “new information” that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected consideration of the referred applicant’s asylum claims by the Minister.”[20]

   [20]    BBS16, op cit at paras [105] – [106].

4. In CHF16, another matter that dealt with s.473DD, the Full Court referred to an argument raised by the Minister as follows:

   “There is one point of construction which we do not find it necessary to pursue. This point is the Minister’s submission that there is no obligation cast by s 473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied. It is not necessary to consider this point further because the Authority in the present case has misunderstood the scope of (a) of s 473DD when concluding that it was not satisfied that there were exceptional circumstances to justify considering the new information. Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it. In a formal sense the Minister’s submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue.”[21]

   [21]    CHF16, op cit at para [46].

5. Those comments were referred to by Gilmour J in BRA16:

   “Even if the IAA had made an error in respect of its consideration of the matters described in s 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied. The word ‘and’ separating subparas (a) and (b) is conjunctive. The position is not that new information given by a referred applicant can be considered if either s 473DD(a) or s 473DD(b) is met. Indeed, as the Minister correctly submits, the Minister’s submission is consistent with BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [36] where White J proceeded upon the assumption that the Authority had misconstrued s 473DD(a) (as his Honour later held at [46]–[47]). It is also consistent with the Full Court’s observation at [46] in CHF16.”[22]

   [22]    BRA16, op cit at para [26].

6. The question then remains, has the Authority properly construed and applied subparas (a) and/or (b) of s.473DD.

7. Whilst the question was not finally determined in CHF16, Gilmour J in BRA16 expressed the view that, depending on the facts of the matter, it is possible for the Authority to make a decision within jurisdiction if it were not satisfied with respect to either subpara (a) or subpara (b) because they are cumulative.  In other words, it would be possible for the Authority to be satisfied only with respect to subpara (a) without considering subpara (b). 

8. Applying the above considerations to the present matter, and dealing firstly with the country information, on a fair reading, the reasons of the Authority do tend to suggest that it regarded the considerations in subparas (b)(i) and (ii) as dispositive of the issue of whether there were exceptional circumstances.  However, even if that error was made the Authority was clearly of the view that the considerations in subpara (b) were satisfied.

9. I accept the submission of the first respondent that having reached that conclusion, it was dispositive because of the conjunctive requirements of subparas (a) and (b).

10. In my view, the Authority did, however, fall into jurisdictional error in considering the two letters.  The failure of the Authority to refer to the specific words of a statute is not necessarily fatal, but in this case it does make the reasoning in paragraph 6 of the reasons somewhat opaque.  The applicant submits that the Authority failed to consider subpara (b)(ii).  It may be, although it is not entirely clear to me, that it was attempting to do so when it made the observations I have referred to at paragraph 12 above.

11. If that was the case, then I take the view that the Authority has too narrowly construed that subsection. The fact that the information pre-dated the delegate’s decision did not preclude it from coming within the ambit of credible personal information which may have affected consideration of the referred applicant’s claims. Nor did the fact that, in the view of the Authority, it appeared to have been provided in verification of the applicant’s claims. Subpara (b)(ii) and s.473DC do not preclude from the scope of ‘new information’ material that may corroborate an applicant’s earlier asserted factual claim. Whilst information may be new in the sense of asserting a previously unknown fact or facts, there is no reason to conclude that it could not also encompass a statement corroborative of the same events asserted by an applicant.

12. An alternative reading of that passage might suggest that the Authority was simply considering those matters in the context of subpara (a).  If that is the case, then in my view the Authority has fallen into jurisdictional error by virtue of a failure to consider whether subpara (b)(ii) applied to inform its assessment as to whether ‘exceptional circumstances’ existed.

13. I have reminded myself of the caution expressed in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang[23] that I should not be concerned with unfortunate phrasing and looseness of language when considering a decision. I am simply not satisfied that on a fair reading the Authority correctly applied s.473DD. For that reason, I am satisfied that the applicant has demonstrated jurisdictional error in ground 1 of his application. It is not necessary for me to proceed to consider grounds 2 or 3 of the application.

    [23] (1996) 185 CLR 259 at p 272.

14. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 8 February 2019