EOI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 822
Federal Circuit and Family Court of Australia
(DIVISION 2)
EOI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 822
File number(s): SYG 3174 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 7 October 2022 Catchwords: MIGRATION – new information – whether the IAA took an unduly narrow approach Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BYM16 v Minister for Immigration & Anor [2017] FCCA 2445
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 2 May 2022 Place: Sydney Counsel for the Applicant: Ms U Okereke-Fisher Solicitor for the Respondents: Mr E Taylor of Mills Oakley ORDERS
SYG 3174 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EOI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
7 OCTOBER 2022
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely on the amended application filed on 11 April 2022.
2.The application, as amended, is dismissed.
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 GIVEN:
By an application filed in this Court on 13 October 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 September 2017 affirming a decision of a delegate of the first respondent (delegate) not to grant him a Safe Haven Enterprise Visa (SHEV).
background
The following background and summary of the Authority’s decision is derived from the submissions of the first respondent, but is not in dispute.
The applicant is a male citizen of Sri Lanka and a Tamil Hindu from Batticaloa, who arrived in Australia as an unauthorised maritime arrival on 25 September 2012 (Court Book (CB) 79).
On 31 March 2016, the applicant applied for a SHEV (CB 1-38) on the basis that he feared harm from the Criminal Investigation Department (CID) in Sri Lanka. The applicant’s claims were set out in a statement accompanying the application (CB 39-45). In summary, the applicant claimed:
(a)he lived in a particular part of, Batticaloa from the time he was born until 2002 and worked as a primary school teacher and later a deputy headmaster;
(b)in 1986 he was detained in a camp by the Sri Lankan Army (SLA) when they did a general “round up” in his home area. After a masked man singled out the applicant and five other men, everyone else was released. The applicant and the other five men were detained for two days and tortured;
(c)in 1987 his father was shot by the SLA while they were rounding up Liberation Tigers of Tamil Eelam (LTTE) suspects;
(d)in 1992 when he was working in a shop, the SLA accused him of supplying goods to the LTTE;
(e)in 2002 the applicant and his family were displaced due to the war. They stayed in one location for three months before relocating to another place about 50km from his home area, to which the applicant continued to commute for work;
(f)in February 2012, the CID stopped the applicant on his way home from work and questioned him for around two to three hours about his father, as to why he had not returned to his home area and whether he was involved in the death of the SLA officer there who had been killed by a suicide bomber “sometime prior to 2009”. After he was questioned by the CID, the applicant discovered that an officer who had been killed in the bombing was the same officer who had been in charge of the SLA in the area where the applicant’s father was killed, and that the CID suspected the reason the applicant had not returned to his home area was because he was involved in the officer’s killing;
(g)after February 2012, the applicant was questioned another three times by the CID. The CID threatened to hurt him if he did not tell them what they wanted to know. Eventually the CID officers left, and the owner of the house in which he was questioned told the applicant to leave before they came back and hurt him. Afterwards, the applicant went into hiding at his sister’s house for two weeks before leaving the country because he feared he would be killed by the CID;
(h)after the third time the applicant was questioned by the CID, other people in his neighbourhood were also questioned and subsequently disappeared;
(i)the applicant’s wife told him that two “unknown men”, who she suspected were CID, came to his family home in Sri Lanka looking for him on 11 February 2014, searched his home and tried to take his son “T” into custody, but left after the neighbours “made a scene”; and
(j)his wife told him that on 20 April 2014, his eldest son “R” was taken into custody by the CID, detained from 3pm to 11pm and questioned repeatedly about the applicant’s whereabouts.
On 1 February 2017, the applicant attended an interview with the delegate (CB 73) (SHEV interview). At the SHEV interview, the applicant showed the delegate a Tamil language article which described the death of the SLA officer killed in a LTTE suicide bombing in 1999. The interpreter translated the name of the officer who was killed, the date of death as 9 August 1999, and the name of the suicide bomber (CB 82).
On 10 March 2017, the delegate refused to grant the applicant a SHEV (CB 79-86). Based on an assessment of country information that suggested Tamils in the applicant’s home area were regularly questioned in the years immediately following the end of the civil conflict, the delegate accepted that the applicant was questioned by the CID four times in 2012 as part of “routine questioning” about security matters, but was not satisfied that he was suspected of involvement in the SLA officer’s death, because the culprit had already been identified, the applicant lived in another town at the time of the incident and he was unable to provide any further meaningful explanation as to why he would be a suspect (CB 82).
On 15 March 2017, the application was referred to the Authority for review (CB 92).
On 4 April 2017, the applicant appointed a registered migration agent as his representative (CB 102-103).
On 5 April 2017, the applicant’s representative provided the Authority with a written submission (CB 104-109) and a letter dated 29 March 2017 from the principal of the school in the applicant’s home area, where the applicant had been employed (Letter) (CB 110).
The Authority’s decision
On 21 September 2017, the Authority affirmed the decision not to grant the applicant a SHEV (CB 114-125).
The Authority expressly had regard to the referred materials (CB 115, [3]) and the written submission, to the extent that it comprised argument (CB 115, [4]).
The Authority had concerns about whether the Letter was “credible personal information” because it stated the applicant had worked at the school from 1992 until 2012, which contradicted the applicant’s evidence that he had only worked at that school from June 2012 to August 2012, and it referred to the applicant leaving Sri Lanka due to “torture” by the CID, in circumstances where the applicant had not claimed to have been tortured by the CID (CB 115, [6]).
The Authority also did not accept that the Letter may have affected the delegate’s consideration of the applicant’s claims because the information about the applicant leaving his job and travelling overseas due to fear of the CID was already known to the delegate (CB 115-116, [7]). While it accepted that the Letter itself was not in existence at the time of the delegate’s decision, the events referred to within did pre-date that decision, and so the Authority was not satisfied the applicant could not have sought the Letter earlier. The Authority did not accept the Letter met s 473DD(b)(i) or (ii) and was also not satisfied there were exceptional circumstances to justify its consideration (CB 116, [8]).
The Authority accepted the applicant’s claimed experience of being rounded up and mistreated by the SLA in 1986 was consistent with country information and on that basis, and that he was held for two days, beaten and suspected of having LTTE links (CB 118, [13]-[14]). It also accepted that the applicant worked in a shop that sold goods to LTTE members and that as a result the army accused him of doing this and that his dog was killed by soldiers. The Authority accepted it was plausible that the SLA monitored the shop during the war and questioned the applicant but found there was no indication of any ongoing adverse attention from the authorities after he stopped working at the shop (CB 118, [15]).
Relying on country information about the civil conflict in Sri Lanka, the Authority also accepted it was plausible that:
(a)the applicant’s father was killed by the SLA in 1987 along with a group of other Tamils; his brother-in-law was taken by the SLA and burnt to death in 1991;
(b)his sister in-law was killed in 1992; and
(c)they were targeted as Tamils from a LTTE controlled area but found there had been a significant change in country circumstances since the war ended in 2009 and was not satisfied the applicant faced a real chance of harm to if he returned to Sri Lanka based on his Tamil ethnicity, being from a former LTTE controlled area, selling goods to LTTE members or his familial links to Tamils killed during the war (CB 118-119, [16]).
The Authority acknowledged that there were credible reports of ongoing arrests and disappearances in Sri Lanka but found that since 2012, the UNHCR Guidelines for assessing the eligibility of Sri Lankans had advised that Tamil ethnicity alone did not give rise to protection needs and there was no longer a presumption that Tamils from former LTTE controlled areas required protection.
The Authority accepted that although the applicant was concerned about accounts of neighbours who disappeared after being taken for questioning in 2012, that based on the country information, it was not satisfied he faced a real chance of harm as a Tamil from a former LTTE controlled area (CB 119, [17]).
The Authority had “significant concerns” about the veracity of the applicant’s claim that in February 2012 he came to the attention of the CID, who questioned him a number of times on suspicion of involvement in the death of the SLA officer in 1999. It did not accept they would have waited almost three years, to question the applicant. It also was not convinced the authorities would believe that the applicant, who was residing and studying in Batticaloa at the time of the bombing, provided shelter to the bomber and found his account of “simply leaving” the house where he was being questioned by the CID in July 2012 was implausible. The Authority found this to be implausible given that the CID had not attempted to locate the applicant when he escaped if he was suspected of having LTTE links and involvement in the bombing (CB 119-120, [18]). Overall, the Authority found the applicant’s account was “unconvincing and implausible”, and did not accept that he had been interviewed by the CID a number of times in 2012, that he was suspected of involvement in the bombing or of having LTTE links, or that his identity card had been taken (CB 120, [19]).
The Authority also found the applicant’s evidence about the CID visiting to his home to enquire about him after he left Sri Lanka was not plausible as it was surprising that the CID would be deterred from arresting someone because of others “making a scene”. It found that even if that was the case, the CID did not return to arrest the applicant’s son or follow up with his wife after his son had told them she was probably still speaking to the applicant (CB 121, [21]-[22]). Accordingly, since it had not accepted the CID had an adverse interest in the applicant and given the implausibility of his evidence, it also did not accept the CID came in search of him or questioned his son, making him sign a document agreeing to bring the applicant to the CID if he returned to Sri Lanka (CB 121, [23]).
Having accepted the applicant was not of adverse interest to the CID, the Authority was also not satisfied that the CID directed the Zone Education Officer to transfer the applicant to a different school in 2012 but found that, even if the claim were true, it did not give rise to a well-founded fear of persecution. It also did not accept that demotion amounted to serious harm or that the applicant would face serious harm on the basis of any such transfer on return to Sri Lanka (CB 121, [24]).
The Authority considered the applicant’s claim that he had witnessed his sister-in-law’s killing by the SLA, however, it found there was no indication the applicant had sought justice for the killing as claimed, or that he planned to take such steps in the future. Based on country information about the Sirisena Government’s prioritisation of human rights and reconciliation, the Authority was not satisfied that the applicant would experience harm if he did seek to avenge his sister (CB 121-122, [25]-[26]).
The Authority accepted the applicant had departed Sri Lanka illegally and sought asylum (CB 122, [27]). Based on country information about entry procedures for returnees travelling on temporary travel documents upon arrival in Sri Lanka (CB 122-123, [27]-[31]), the Authority found the applicant would be detained and questioned for a number of hours and then released or discharged upon payment of a fine or bail (CB 123, [32]). Although it accepted the applicant may be detained in poor prison conditions for a period of time, the Authority was not satisfied that a brief period of detention in those conditions, questioning of the applicant at the airport or the imposition of a fine would constitute serious harm (CB 123, [33]-[34]). In the alternative, the Authority found that the Immigrants and Emigrants Act 1949 (I&E Act) was a law of general application and that application of it would not amount to persecution (CB 123, [35]). The Authority found there was no indication the applicant’s status as a failed asylum seeker would bring him to the adverse attention of the authorities and that he also did not have an actual or imputed profile of LTTE links that would bring him to the adverse attention of the authorities (CB 123-124, [36]).
The Authority relied on its earlier findings to conclude the applicant did not face a real risk of significant harm arising from (CB 124-125, [41]-[42]):
(a)any transfer to a different school in 2012;
(b)a Tamil asylum seeker from a former LTTE controlled area;
(c)his past interactions with the LTTE while working in a shop;
(d)being detained and mistreated by the army;
(e)having family members killed by the army during the war; or
(f)if he should seek justice for the killing of his sister-in-law.
In light of country information, the Authority was not satisfied that any treatment to which the applicant would be subject if processed under the I&E Act amounted to significant harm. It did not accept that poor prison conditions amounted to significant harm, finding that there was no intention to inflict significant harm (CB 125, [43]-[45]).
application to this court
By an application to show cause filed on 13 October 2017 (originating application), the applicant sought judicial review of the Authority’s decision and raised one ground of review. The matter was initially docketed to Judge Dowdy and, on 2 February 2018, the applicant attended a first Court date before his Honour at which the Court made orders by consent providing inter alia for the applicant to file and serve any amended application by 30 March 2018. The applicant did not avail himself of that grant of leave. The matter was to be listed for a final hearing on a date and time to be advised administratively, but was subsequently returned to the central migration docket.
On 22 December 2021 the matter was docketed to me, and a Registrar of this Court listed it for hearing with a timetable for its preparation. On 21 January 2022 the parties were sent a listing notice indicating that the matter had been set down for final hearing on 2 May 2022. The listing notice was sent to the applicant at his postal address because no email address had been provided by him as part of the originating application. By the orders made on 22 December 2021, the applicant and first respondent were required to file and serve written submissions 14 and 7 days before the hearing (respectively).
Leave to amend
On 11 April 2022, a proposed amended application was filed by the applicant.
On 20 April 2022, submissions were filed (2 days out of time) for the applicant.
By the written submissions filed for the applicant, his Counsel stated:
The New Ground One below is as outlined in the Applicant’s Amended Application filed on 11 Aril 2022. The New Ground One replaces the ground in the original application. The Applicant seeks leave to rely on the New Ground One. The need to amend the original application arose form the Applicant’s retention of Counsel on a direct access basis on 29 March 2022.
No evidence was provided in relation to the basis upon which leave was sought.
On 22 April 2022 the first respondent filed submissions which, in relation to the issue of leave, indicated that it was opposed. After noting the explanation which is set out at [29] the first respondent said that the applicant had not explained why he delayed seeking legal representation until 29 March 2022, more than four years after he commenced these proceedings and more than three months after he was notified by the Court that his matter was listed for a final hearing. The first respondent submitted that this was unsatisfactory in circumstances where the applicant had ample time to prepare his case for hearing, and that it would be an improper exercise of the Court’s power to allow a late amendment to an applicant’s case in circumstances where there is no explanation for the failure to comply with the Court’s orders and in circumstances where the applicant had been given, but failed to use, an opportunity to amend. The first respondent said that given there is no explanation for a late application for amendment, the merits are not necessarily decisive: see BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 at [7]. The first respondent also said that the lack of merit of the proposed amended ground of judicial review weighed against leave being granted.
On 2 May 2022, being the day of the hearing, an Affidavit document was emailed to my Associate by Counsel for the applicant. That document, while signed by him, was not witnessed. I granted leave to the applicant to file a properly executed Affidavit by the end of the next day. That order was complied with. By his Affidavit, the applicant deposed to have initially retained the late Mr Ashok Kumar of Counsel. Mr Kumar passed away in 2019 and the applicant deposed to only having discovered this fact in January 2022 after he received the listing letter and made attempts to contact Mr Kumar. The applicant indicated by the Affidavit that he then retained his present Counsel on 29 March 2022. The applicant then says at [9]:
On 11 April 2022, Ms Okereke-Fisher advised me that she will be adopting a different approach and would have to amend the ground in the original application and she sent me the Amended Application.
The first respondent’s position at hearing was that, even if the defect in the Affidavit were cured and it was filed in accordance with the Court’s orders, leave to amend the originating application was still opposed. The parties were agreed that the question of leave could be deferred to the determination of the matter by this judgment.
Albeit there is nothing on the Court’s file to indicate that Mr Kumar was ever involved in these proceedings, I am prepared to give the applicant the benefit of the doubt that he had retained him and that Mr Kumar’s untimely death, together with the applicant’s lack of knowledge about it, contributed to the delay in seeking to amend the application. While there is still no explanation as to why the applicant did not retain alternate Counsel sooner than 8 weeks after discovering Mr Kumar’s had passed, and that his present Counsel appears to be instructing the applicant and not the other way around (see Affidavit at [9] as extracted at [32] above), overall I accept the applicant’s explanation for delay.
In those circumstances, and given that I would in any event have to consider the merit of the ground, I am prepared to grant leave to the applicant to rely upon the proposed Amended Application file on 11 April 2022 (Amended Application).
In addition to the Affidavit of the applicant made on 2 May 2022, the Court Book was received into evidence and marked Exhibit “1R”.
Ground of review
Leave having been granted to amend, the single ground of review which now arises for consideration in this matter is as follows:
1.Jurisdictional Error -The Authority fell into jurisdictional error by adopting an erroneous construction of s473DD in that it (i) misconstrued 473D(b)(ii); (ii) made inaccurate factual statements; (iii) failed to consider new information in accordance with the law; (iv) failed to consider explanations and reasons advanced by the Applicant and adopted an unduly narrow construction of s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD leading to jurisdictional error.
Particulars
a) In the Applicant’s submission to the Authority on 5 March 2017 the Applicant’s Representative provided new information including letter from [the Principal] at the Applicant’s last place of Work in Sri Lanka (“the Letter”) (CB 110).
b) In the Letter, the Principal stated "Reason for the Inquiry that he is live from LTTE control area and to help for the LTTE".
c) In his statement at [18] (CB 41), the Applicant stated "In February 2012, the CID (which works together with the army) stopped me on my way home from the school where I worked and took me to a house nearby and questioned me for around 2 to 3 hours.
d) The Delegate noted at (CB 83) "The applicant insisted that he would be targeted in a hidden way and suggested that paramilitaries work on behalf of the government to harm people.
e) The IAA stated at [61 (CB 115) "… "The Letter refers to the applicant leaving Sri Lanka due to torture by the CID yet the applicant did not claim to have been tortured or mistreated by the CID".
Despite the lengthy particulars, the issue is in short compass. Namely, did the Authority err by taking an unduly narrow approach to its assessment of whether to take into account new information. From the particulars to the ground, the focus of this challenge is to the Authority’s handling of the Letter.
The Letter is found at CB 110. After setting out the title and address of its author and the date “29.03.2017”, the letter states as follows (anonymisation added but errors in original):
TO WHOM IT MAY CONCERN
This is to certify that Mr [EOI17] served as a Teacher from 1992.04.01 to 2012.08.03 at the above school. He left his teaching post and went abroad due to torture by the C.I.D. Thereafter his sons also inquired by C.I.D. If he departed Srilanka that he will have to face life threat in Sri Lanka. Reason for the inquiry that he is live from LTTE control area and to help for the LTTE. Now CID inquires my son.
Yours faithfully
[Signature]
[Name/Title/Address by stamp]
The submissions made for the applicant were somewhat confusing and shifted from the manner in which the ground was pleaded, and throughout oral submissions. While the ground of review asserts that the Authority misapplied s 473DD(b)(ii) of the Migration Act 1958 (Cth) (Act) in relation to the letter by making “inaccurate factual statements” and failing to consider the “explanations and reasons advanced by the applicant”, these were not particularised with one exception. By the applicant’s written submissions it is additionally alleged that the Authority was wrong to find that (contrary to what is recounted by the author of the Letter), the applicant had not claimed to be tortured by the CID. The applicant says that because the applicant claimed to fear harm from the CID in Sri Lanka and that the CID works with the army, therefore “all torture and mistreatment by the Army can be attributed to the CID.” This issue is addressed below at [55]-[56].
Given that the applicant’s submissions oscillated, and given that the ground is aimed at what is said to be a failure to comply with s 473DD, it is most logical to review the decision by reference to the language of the statute.
Section 473DD provides as follows:
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.
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at 501–502 [11]–[12], 503–504 [16] and [18], Kiefel CJ, Gageler, Keane and Gordon JJ found that the Authority must assess:
(a)first, whether new information obtained from a referred applicant met one or both criteria in s 473DD(b)(i) and (ii); and
(b)thereafter whether there were exceptional circumstances under 473DD(a).
The High Court found that if either (or both) of the s 473DD(b)(i) or s 473DD(b)(ii) criterion 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).
The applicant asserts (in particular, at [22] to [25]) that the Authority failed to consider the reasons proffered by the applicant as to why there were exceptional circumstances to justify consideration of the Letter which were advanced by the applicant’s migration agent, namely that:
(a)it was highly risky for the principal of the school, being a public servant to provide the Letter in support of the applicant;
(b)there was no reason for the applicant to have otherwise resigned from his teaching post and fled Sri Lanka;
(c)the applicant’s case was exceptional because his life was at risk; and
(d)the applicant had issues with the CID and the Sri Lankan Army.
This broad submission primarily directs itself to the merits and does not properly adhere to the process identified in AUS17.
Turning to that process, the Authority considered the timing of the Letter being produced by reference to the document itself and its content. While the Authority accepted that the Letter post-dated the delegate’s decision by 19 days, it expressly found itself dissatisfied that the Letter could not have been sought earlier so as to be provided to the delegate. The information within the Letter which spanned April 1992 to August 2012 (said to be the applicant’s tenure at the school) and his going abroad (which took place in late September 2012), which clearly pre-dated the delegate’s decision. At [8] the Authority said it was not satisfied that (CB 116 at [8]):
(a)this could therefore not have been provided to the Minister (s 473DD(b)(i)); or
(b)it was credible personal information which was not previously known, but if it had been, could have affected the consideration of the applicant’s claims (s 473DD(b)(ii)).
Within the Letter there is also a sentence which says “Now CID inquires my son” (which by the applicant’s written and oral submissions is defined as “The CID Information”). An argument was raised for the applicant that can be summarised as follows:
(a)pursuant to s 473BB of the Act, new information has the meaning given by subsection 473DC(1);
(b)s 473DC(1) of the Act says that the Authority may “get any documents or information” (new information) that were not before the Minister when the Minister made the decision under s 65 and specifically pursuant to 473DC(1)(b) “the Authority considers may be relevant”.
(c)therefore, by proceeding to include the “The CID Information” as part of its consideration of whether to have regard to the Letter as being new information, the Authority impliedly accepted that “The CID Information” was relevant, which is at odds with the finding at [7] that “there is not information before me to explain how enquiries the CID may have made to the principal’s son are relevant to the applicant’s protection claims”.
The first respondent submits that this places a strained construction on ss 473DC(1)(b). I agree.
Sub-section 473DC(1)(b) does not have the effect that where a document contains a mixture of information, in that assessing whether to consider the document, irrelevant information is somehow elevated to be relevant. The Authority was entitled to make a prima facie finding that “The CID Information” could be winnowed from the Letter. The particular sentence in the Letter is vague at best, and silent as to chronology. Nothing was placed before the Authority, nor before the Court to demonstrate how this sentence does not fall wholly within the Authority’s assessment that the Letter was not, and could not have been, provided to the delegate, nor that it was credible personal information which was not previously known and had it been known, might have affected consideration of the applicant’s claims.
Next the applicant says that the Authority erred in the manner identified in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [40]-[43]. In CSR16, Bromberg J found the Authority erred by imposing a higher standard of satisfaction than required by s 473DD(b)(ii) criteria. His Honour held that the criterion in s 473DD(b)(ii) requires the Authority to be satisfied that new information is “credible” in the sense of being open to, or capable of being accepted by the Authority as truthful, accurate or genuine. His Honour found that this high-level assessment should take place without the Authority reaching a final conclusion as to the issue because if it were even capable of being believed then resolution of whether it was in fact truthful, accurate or genuine fell to occur in the substantive review based on all material. In particular, in CSR16 Bromberg J stated the following at [41] to [42]:
In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
The applicant says that the manner in which the instant Authority approached the sentence in the Letter referring to the principal’s son is a similar species of error constituted by the Authority having assessed the relevance of that information by reference to the applicant’s claims.
The first respondent says that this submission is misconceived because the Authority did not make any finding that the information about the principal’s son being untrue, or not believable (as opposed to “not capable of being believed”: see CSR16 at [42]). The first respondent says that the obvious approach to determining relevance of information in relation to a Fast Track decision is by reference to the applicant’s claims.
In my view there is no error in the present decision of the kind identified in CSR16. The Authority did not make pre-emptory findings about the sentence in question. Its finding that the sentence about the CID’s alleged interest in the principal’s son was not relevant was reasonably open for the reasons it gave. It observed that there was no explanation proffered as to what, or with whom, this stance intersected or affected, or how it related to the applicant’s claims. Again, seen through the prism of this specific allegation, the finding that the Letter was not “new information” as defined in s 473DC(1)(b) was open to the Authority.
The applicant makes submissions that there is an error constituted by the Authority stating that while that Letter referred to the applicant leaving Sri Lanka due to “torture by the CID”, the applicant had made no such claim. In order to make good this assertion it is said for the applicant that:
(a)the applicant claimed to fear harm from the CID;
(b)the CID works with the Army; and
(c)therefore “all the torture and mistreatment by the Army can be attributed to the CID”.
It is not open to this Court to draw such a conclusion. This does not constitute a jurisdictional error either as a stand-alone assertion or within the context of the cumulative particulars asserting an unduly narrow approach on the Authority’s part to s 473DD. At best, it is an attempt at merits review which is impermissible.
In my view there is no error as alleged by the applicant in as to the manner in which the Authority reasoned in relation to whether to consider the Letter as new information.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 7 October 2022
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