FPN17 v Minister for Immigration

[2020] FCCA 987

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPN17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 987

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – applicant making entirely new claims after application refused by delegate – whether unreasonable for the Authority to not consider new claims and new country information – whether Authority made a jurisdictional error by failing to consider new claims and country information.

Legislation:
Migration Act 1958 (Cth), s.473DD

Cases cited:
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Home Affairs v Omar [2019] FCAFC 188

Applicant: FPN17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 2782 of 2017

Judgment of: Judge Riley

Hearing date: 5 and 6 December 2019

Date of last submission: 6 December 2019

Delivered at: Melbourne

Delivered on: 29 April 2020

REPRESENTATION

Counsel for the applicant: Anthony Krohn

Solicitors for the applicant: Vrachnas and Co

Counsel for the first respondent:	John Maloney
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 19 December 2017 and amended on 18 November 2019 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $8,107.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2782 of 2017

FPN17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Authority affirmed the decision of a delegate of the Minister not to grant the applicant a safe haven enterprise subclass 790 visa. 

The applicant’s original claims

1. In paragraph 4 of his outline of submissions filed on 29 November 2019, the Minister summarised the applicant’s claims in his protection visa application as follows:

   The Applicant is a Hindu Tamil and a citizen of Sri Lanka, and was born on 21 March 1974 (CB 50). He applied for a SHEV on 19 August 2016 (CB 91). His application was relevantly accompanied by a statutory declaration setting out his claims (CB 79). In summary, the Applicant’s claims were as follows:

   a.The applicant is from a village in Batticaloa District in the Eastern Province where he had a boat and worked as a fisherman. He is married with children.

   b.In 2004 and 2004 the LTTE/Karuna Group forced him to provide the use of his boat for the transportation of goods and letters and the supply of fish.

   c.Between 2004 and 2005 the Karuna group split from the LTTE and after this the Karuna Group collaborated with the Criminal Investigation department (CID) and provided a list of names of people associated with or who had assisted the LTTE.

   d.Nothing happened to the applicant between 2006 and 2009 but the Karuna group became more active in 2010 and on one occasion the group came looking for the applicant at his home and told the applicant’s wife they were collecting information for the CID about the LTTE in regard to boats. They told his wife to tell the applicant to report to the local army base.

   e.When he returned from fishing his wife told him what had happened and they travelled to Colombo to stay with a relative. His aunt arranged for a passport and a Malaysian visa for the applicant and the applicant departed Sri Lanka and arrived in Malaysia legally.

   f.Six months after he left the Karuna Group contacted his wife and she told them he was overseas. They told his wife there would be consequences if the applicant did not turn himself in when he returned to Sri Lanka.

   g.The applicant fears he would be identified by the CID at the airport on return to Sri Lanka. He fears he would be detained indefinitely as he no longer has a passport or that he will be killed or tortured as he claims this has happened to other people he knows. Even if he is released, he fears that the authorities or paramilitary groups will find and abduct him as he believes they will think he is seeking to re-establish the LTTE movement.

   h.He fears harm on the basis of his Tamil ethnicity and that he will be harmed because of an imputed political opinion or profile as a past supporter of the LTTE. He fears harm because he sought asylum in Australia. He fears harm from the SLA, the CID, the Karuna Group and the Sri Lankan authorities. He claims he cannot relocate within Sri Lanka to avoid harm.

   i.He claims his return to the Eastern province would see him regularly come into contact with members of the security services or paramilitary groups, which would heighten his vulnerability to facing harm at the hands of these groups. His past LTTE connections, his age, place of origin and ethnicity would all add an additional dimension to the risks he would face on return to his place of origin.

The delegate’s decision

1. In paragraph 5 of his outline of submissions filed on 29 November 2019, the Minister summarised the delegate’s decision as follows:

   The Applicant was interviewed by the Delegate on 12 January 2017 (CB 101). The Delegate refused the Applicant’s application on 16 February 2017 (CB 103). The Delegate accepted the Applicant’s history was as claimed, however, in light of improved circumstances in Sri Lanka - including the end of the Sri Lankan Civil War, and a decline in the mistreatment of Hindu Tamils and the fortunes of the Karuna group - found that he did not face a real chance or risk of harm in the reasonably foreseeable future (CB 109-114).

The applicant’s new claims

1. Following the delegate’s refusal of his visa application, the applicant made some new claims. In his outline of submissions filed on 29 November 2019, the Minister summarised the applicant’s new claims and the circumstances in which they were made as follows:

   6.Following the Delegate’s refusal and the referral of the proceeding to the Authority, the Applicant, through his representatives, provided a further submission and statutory declaration (Post-referral materials) (CB 133-140). The grounds of the Applicant’s present application for review arise from the Authority’s assessment of particular parts of that material.

   7.In the post-referral materials and contrary to his claims as theretofore advanced, the Applicant claimed that:

   a.He ‘was a member of the LTTE’ (CB 133), having been forcibly recruited in about 1993 (138 [3]);

   b.As an LTTE member, he had ‘received physical and military training for approximately two months’ (CB 138 [4]), and had ‘actively engaged in combat against the SLA’ (CB 133);

   c.After being discharged from combat duty because of ear problems, he supplied fish to the LTTE for over two years from 1994 to 1996 (CB 138 [5]);

   d.After adverse interest from the pro-government Tamil Eelam Liberation Organisation, he fled to Saudi Arabia, where he remained for 7 years (CB 138-139 [5]). After a brief return to Sri Lanka in 2003 he went to live in Qatar, for over two years (CB 139 [6]);

   e.The assistance he gave to the LTTE that was the subject of his initial claims had in fact been provided between 2005 and 2006 (later than initially claimed) (CB 139).

   8.The Applicant’s representatives explained that the Applicant did not disclose this information previously because ‘he thought he would be deemed a security risk to Australia and returned to Sri Lanka’, and ‘[h]e was also fearful about the possible harm it would cause his family in Sri Lanka’. ‘In light of this’, the representatives submitted ‘that exceptional circumstances exist to justify consideration of this new information by the IAA’ (CB 133).

   9.The Applicant’s representatives also put before the Authority country information which had not been before the Delegate, and which, it was submitted, supported the conclusion ‘that the Applicant remains at a real risk of harm on return to Sri Lanka because of his past involvement with the LTTE, particularly given his military training and combat history’ (CB 134, 136-7).

The Authority’s reasons

1. In his outline of submissions filed on 29 November 2019, the Minister summarised the Authority’s reasons as follows:

   10.In its reasons for affirming the Delegate’s decision, the Authority first addressed the Post-referral materials. It took into consideration those parts of the materials which responded to the delegate’s decision and reasserted the claims already before the Delegate (CB 145 [4]). As to the country information that had not been before the Delegate: it accepted that the country information, as it post-dated the Delegate’s decision, ‘was not, and could not have been, provided to the Minister before the delegate made their decision’ (CB 145 [4]). However, it went on to note that the mere fact that the country information was recent did not constitute an exceptional circumstance to justify considering it (for the purposes of s 473DD of the Migration Act 1958 (Cth) (Act)), and that (CB [145 [6]):

   There is adequate country information before me already about the issues raised in the submission, and the new information is consistent with that advice. I also note the concerns raised in the information quoted and consider those matters are not in contention.

   11.‘[W]eighing everything before [it]’, the Authority was not satisfied there were exceptional circumstances to justify consideration of the new country information (CB 145 [6]).

   12.The Authority went on to consider the Applicant’s new claims. It described the new claims as ‘a significant departure from [the Applicant’s] previous claims, made during the arrival and visa interviews, and in his written visa application’ (CB 145 [8]). It set out the new claims, and recounted the explanation offered by the Applicant: that he had not raised these claims earlier because he was fearful that he would be deported, and fearful for his family, should word of the claims get back to Sri Lanka (CB 146 [10]). The Authority’s ensuing reasons (CB 146-147 [11]-[15]) are reproduced below:

   In his arrival interview, the applicant claimed that the Karuna group was accusing the applicant of helping the LTTE and that he left in 2010 after the group had come to his house. The applicant did not indicate that he ever had any other issues. He stated that he was not involved in the armed conflict and was not involved with the military. He referred to his travels to Malaysia and Indonesia, but made no claims to have worked in Qatar or Saudi Arabia.

   In his visa interview, the applicant confirmed he had received, read and understood a Tamil version of the Departmental information form “Important information about your protection visa interview”. That form, as translated, states the importance of the applicant telling the truth throughout the protection visa process and providing the Department complete, personal and accurate protection claims, as early as possible, including during the interview, as well as the protections in place in relation to his personal information. During the interview, the delegate confirmed the applicant’s personal information would not be made available to the authorities in Sri Lanka. The delegate emphasised the importance of raising compete, accurate and personal protection claims as early as possible. The delegate cautioned that if the applicant did not give the Department all relevant information about his protection claims, and his application was refused, he may not have another chance to provide information to support his claims. He was advised that if he had not provided information, or he wanted to correct previous information provided, he should do so during that interview.

   The applicant was asked a range of questions during the interview, and clarification was sought on numerous occasions as to the depth and extent of the applicant’s claims. The applicant did not depart from his claims in the written statement, and emphasised on multiple occasions that he assisted the LTTE with fishing and transportation between 2004 and 2005, that the Karuna Group had inquired about him in 2010, and that he had fled to Malaysia. The applicant confirmed in no uncertain terms that he had never received military training, and had not been a member or supporter of the LTTE. The applicant did not disclose any other travels to Saudi Arabia or Qatar during the visa process. The applicant also did not disclose any other concerns or claims he had with the STF or TELO.

   I accept that a person with an actual LTTE profile and history may be apprehensive about disclosing those matters to the Australian authorities, and the risks to his family at home, at least initially. However, at multiple junctures during the visa application process, the applicant was advised of the importance of advancing true and complete claims, and the protections in place in relation to his personal information. The applicant was given a number of opportunities during the visa interview to advance and expand on his claims, and he was asked whether he had any other matters to add. On each occasion, he reiterated his existing claims and made no other claims. He was asked direct and specific questions about any LTTE involvement or training. I find his conduct during the visa process and interview seriously undermines the credibility of the new claims raised before the IAA. In terms of his explanation for why these claims were not raised earlier, I note the applicant failed to disclose other cogent matters that were unrelated to any LTTE profile and not sensitive, such as his travel and work in Saudi Arabia and Qatar.

   The statutory declaration submitted to the IAA was not before the delegate and is new information. The statutory declaration was made in March 2017 and on that basis could not have been provided to the Minister before the delegate’s decision was made, although its contents all relate to matters that predate the decision by more than a decade. The applicant has failed to satisfy me that he could not have provided this information to the Minister, or that it is credible personal information. I consider the applicant was fully aware of the protections in place in relation to his personal information, and the importance of raising full, truthful and complete claims. In the circumstances, I am also not satisfied that exceptional circumstances exist that warrant the IAA considering the new information and claims. Beyond this assessment, I have not had regard to the new information and claims raised in the applicant’s IAA submission

   13.In the balance of its reasons, the Authority addressed in detail the Applicant’s claims, and arrived at the same conclusion as the Delegate: that due in large part to improved circumstances in Sri Lanka, the Applicant did not face a real chance or risk of serious or significant harm.

Ground 1

1. The first ground of review in the application filed on 19 December 2017 and amended on 15 November 2019 (“the application”) is:

   The Authority fell into jurisdictional error in that it was unreasonable.

   PARTICULARS

   (a)The Authority was unreasonable in its decision to not consider new country information provided in the applicant’s written submission. (CB 133-137: Decision. [5]-[6]. CB 145)

   (b)The Authority was unreasonable in its decision to not consider new claims provided in and with the applicant’s written submission. (CB 133-140: Decision. [8]-[15]. CB 145-147)

2. This ground concerns s.473DD of the Migration Act 1958 (“the Act”).  That section provided that:

   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.

3. The authorities on unreasonableness are well known.

4. In relation to particular (a), concerning new country information, the Authority accepted that the new country information was not in existence when the delegate made his decision, and therefore could not have been provided to the delegate. Consequently, the only issue for the Authority was whether there were exceptional circumstances to justify considering the new country information.

5. The Authority dealt with that question at paragraph 6 of its reasons for decision where it said:

   In terms of the new country information that postdates the decision, I am not satisfied that its recency alone constitutes an exceptional circumstance to justify considering the new information. There is adequate country information before me already about the issues raised in the submissions, and the new information is consistent with that advice. I also note the concerns raised in the information quoted and consider those matters are not in contention. Weighing everything before me, I am not satisfied there are exceptional circumstances to justify consideration of any of the new country information, and I have not considered that new information pursuant to s.473DD of the Act.

6. The applicant argued that the pre-existing country information that the Authority relied on gave a rosier picture of the circumstances in Sri Lanka than the new country information that the applicant asked the Authority to consider. The applicant emphasised that, under s.473DD of the Act, the question is only whether to consider new information: if the Authority decided to consider the new information, there was no obligation on the Authority to accept it.

7. The Minister argued that the scheme of Part 7AA of the Act was, in general, to require applicants to put forward all of their claims and evidence at the delegate stage of consideration, and not at the Authority stage. The Minister argued that, in the ordinary course, an applicant would be able to find country information that post-dated the delegate’s decision. However, the Minister argued, absent evidence of some significant shift in the circumstances of the applicant’s home country, such as a civil war, or a natural disaster, the fact that an applicant’s agent found some country information that post-dated the delegate’s decision, and perhaps put a slightly different perspective on things, would not constitute exceptional circumstances, and it would not be unreasonable for the Authority to so find.

8. I accept the Minister’s submissions on this point. In the present case, the highest that the applicant could put it was that the country information that post-dated the delegate’s decision gave a less rosy picture of circumstances in Sri Lanka than the Authority found. This is not enough to make the Authority’s decision to exclude the new country information unreasonable, given that there will always be country information that gives a more or less positive perspective on the circumstances in an applicant’s home country, and given that the decision-maker, within very broad limits, is able to choose which country information to prefer.

1. In relation to particular (b), regarding the new claims, the applicant’s original claims were that he had been forced to use his fishing boat to transport goods for the LTTE and forced to give them fish, while his new claims were that he had been a member of the LTTE and fought for them. 

2. The Authority addressed the new claims as follows:

   10.The applicant’s explanation for not raising these claims earlier was that he was fearful that he would be unable to remain in Australia and would be detained by the Australian authorities and immediately deported back to Sri Lanka. He was also reluctant to disclose this information out of fear it would get back to Sri Lanka and cause problems for his family.

   11.In his arrival interview, the applicant claimed that the Karuna Group was accusing the applicant of helping the LTTE and that he left in 2010 after the group had come to his house. The applicant did not indicate that he ever had any other issues. He stated that he was not involved in the armed conflict and was not involved with the military. He referred to his travels to Malaysia and Indonesia, but made no claims to have worked in Qatar or Saudi Arabia.

   12.In his visa interview, the applicant confirmed he had received, read and understood a Tamil version of the Departmental information form “Important information about your protection visa interview”. That form, as translated, states the importance of the applicant telling the truth throughout the protection visa process and providing the Department complete, personal and accurate protection claims, as early as possible, including during the interview, as well as the protections in place in relation to this personal information. During the interview, the delegate confirmed the applicant’s personal information would not be made available to the authorities in Sri Lanka. The delegate emphasised the importance of raising complete, accurate and personal protection claims as early as possible. The delegate cautioned that if the applicant did not give the Department all relevant information about his protection claims, and his application was refused, he may not have another chance to provide information to support his claims. He was advised that if he had not provided information, or he wanted to correct previous information provided, he should do so during that interview.

   13.The applicant was asked a range of questions during the interview, and clarification was sought on numerous occasions as to the depth and extent of the applicant’s claims. The applicant did not depart from his claims in the written statement, and emphasised on multiple occasions that he assisted the LTTE with fishing and transportation between 2004 and 2005, that the Karuna Group had inquired about him in 2010, and that he had fled to Malaysia. The applicant confirmed in no uncertain terms that he had never received military training, and had not been a member or supporter of the LTTE. The applicant did not disclose any other travels to Saudi Arabia or Qatar during the visa process. The applicant also did not disclose any other concerns or claims he had with the STF or TELO.

   14.I accept that a person with an actual LTTE profile and history may be apprehensive about disclosing those matters to the Australian authorities, and the risks to his family at home, at least initially. However, at multiple junctures during the visa application process, the applicant was advised of the importance of advancing true and complete claims, and the protections in place in relation to his personal information. The applicant was given a number of opportunities during the visa interview to advance and expand on his claims, and he was asked whether he had any other matters to add. On each occasion, he reiterated his existing claims and made no other claims. He was also asked direct and specific questions about any LTTE involvement or training, and the applicant reiterated that he had no such involvement or training. I find his conduct during the visa process and interview seriously undermines the credibility of the new claims raised before the IAA. In terms of his explanation for why these claims were not raised earlier, I note the applicant failed to disclose other cogent matters that were unrelated to any LTTE profile and not sensitive, such as his travel and work in Saudi Arabia and Qatar.

   15.The statutory declaration submitted to the IAA was not before the delegate and is new information. The statutory declaration was made in March 2017 and on that basis could not have been provided to the Minister before the delegate’s decision was made, although its contents all relate to matters that predate the decision by more than a decade. The applicant has failed to satisfy me that he could not have provided this information to the Minister, or that it is credible personal information. I consider the applicant was fully aware of the protections in place in relation to his personal information, and the importance of raising full, truthful and compete claims. In the circumstances, I am also not satisfied that exceptional circumstances exist that warrant the IAA considering the new information and claims. Beyond this assessment, I have not have regard to the new information and claims raised in the applicant’s IAA submission.

3. As can be seen, the Authority:

   a)was not satisfied that the applicant could not have provided the new claims to the delegate;

   b)was not satisfied that the new claims were credible; and

   c)was not satisfied that there were exceptional circumstances that justified the Authority considering the new claims.

4. The applicant argued that it was unreasonable for the Authority to not consider the new claims because they were sufficiently grave to mean that, if true, the applicant would be in serious danger of serious harm upon return to Sri Lanka. 

5. The applicant argued that the Authority applied the wrong test when deciding that the new claims were not credible, because it is a low bar.  The applicant relied on CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 where Bromberg J said that:

   41In 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.

   42The 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) 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.

6. The Minister accepted that the question of credibility in s.473DD(b)(ii) of the Act is a preliminary, threshold question about whether the new information is capable of being believed. The Minister argued that was the test the Authority applied in this case. The Minister argued that the Authority found that the new claims were not capable of being believed because:

   a)they directly contradicted the applicant’s earlier evidence;

   b)he had previously been directly asked about the substance of his new claims and he had expressly denied the matters that he now said were true; and

   c)his explanation for not raising the new claims earlier was unpersuasive.

7. I accept the Minister’s argument about the credibility question, for the reasons he has given. In the circumstances outlined, it was not unreasonable for the Authority to consider that the new claims were not credible.

8. In relation to s.473DD(b)(i) of the Act, the applicant argued that he gave the Authority a cogent explanation for not having presented the new claims to the delegate. However, the Authority found that explanation inadequate, and essentially found that the new claims were not but could have been provided to the delegate. The Minister argued that finding was not unreasonable.

9. I accept the Minister’s argument on this point also. That is, in my view, it was open to the Authority to find the applicant’s explanation for not advancing the new claims earlier was so inadequate that it was open to the Authority to conclude that the new claims could have been provided to the delegate, if they had been true.

10. As s.473DD(a) and s.473DD(b) of the Act are cumulative, the fact that there is not the jurisdictional error alleged in either limb of s. 473DD(b) of the Act makes consideration of s.473DD(a) of the Act superfluous. However, for completeness, I will consider it.

11. In relation to s.473DD(a) of the Act, and whether there were exceptional circumstances justifying considering the new claims, the applicant argued that there were exceptional circumstances if the Authority could not discharge its task of deciding whether the applicant is at risk except by looking at the new claims. I do not accept that submission. The scheme of Part 7AA of the Act is for the Authority to apply a particular test in deciding whether to look at new claims. The applicant’s argument proceeds as if that test did not exist. In the present case, the Authority considered that the new claims were not credible, because they were wholly contradicted by the applicant’s own evidence and his reasons for not advancing the new claims earlier were considered to be inadequate. It is not unreasonable for the Authority to decide that there were no exceptional circumstance requiring consideration of the new claims when those claims were not credible and were not advanced earlier for inadequate reasons.

12. The applicant emphasised that the Authority’s review was a hearing de novo, and, as such, the Authority was required to examine the case that was put to it by the applicant. However, again, this submission fails to recognise the scheme of Part 7AA of the Act.

13. The applicant relied on the decision of the Full Court of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 at [36] and [37] where the court said that considering a claim requires an active intellectual engagement with it. As shown in the quotation set out above, the Authority actively, intellectually engaged with the issue of whether to consider the new information. Omar does not assist the applicant in this case. 

14. Ground 1 is not made out.

Ground 2

1. The second ground of review in the application is:

   The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.

   Particulars

   (a)The Authority failed to comply with s 473DD in regard to its decision to not consider new country information provided in the applicant’s written submission. The country information provided by the application post-dated the Delegate’s decision and contained information relevant to the applicant’s profile. (CB 133-137: Decision, [5]-[6], CB 145)

   The Authority failed to comply with s 473DD(b) in its decision to not consider new country information provided in the applicant’s written submission. The Authority failed to recognise the new information before it as it adopted an incorrect interpretation of the term “exceptional circumstances”, and it erred in determining that there were no exceptional circumstances in existence to justify the consideration of the new information.

   s 473DD: (emphasis added)

   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.

   (i)In terms of the new country information that postdates the decision, I am not satisfied that its recency alone constitutes an exceptional circumstance to justify considering the new information. There is adequate country information before me already about the issues raised in the submission, and the new information is consistent with that advice. I also note the concerns raised in the information quoted and consider those matters are not in contention. Weighing everything before me, I am not satisfied there are exceptional circumstances to justify consideration of any of the new country information, and I have not considered that new information pursuant to s.473DD of the Act.

   (Decision [6])

   (b)The Authority failed to consider the new claims of the applicant, when they were claims which may have affected the consideration of his matter, and he was unrepresented before the delegate, except for some temporary assistance in completing his application for the visa. (CB 133-140: Decision. [8]-[15]. CB 145-147)

2. The applicant conceded that ground 2 was dependent upon the success of ground 1. As I have found that ground 1 was not successful, there was no obligation on the Authority to consider the new information.  Ground 2 is not made out.

Conclusion

1. As neither of the applicant’s grounds has been made out, the application will be dismissed.

Costs

1. The hearing of this matter could not be concluded on the day it was listed for hearing, because the applicant’s counsel was two hours late for court.  It seems that this may have occurred because the matter was originally listed before Judge Kelly on 5 December 2019 at 2.15pm, but subsequently a notice of relisting was sent to the applicant’s solicitor indicating that the matter was listed before me at 10am on 5 December 2019. The applicant’s counsel told the court that he only learned of the relisting at 10am on 5 December 2019, when he was about two hours’ travel away.  

2. The hearing began at 12.08 on 5 December 2019, but had to conclude at 1pm because the Minister’s instructing solicitor was unavailable in the afternoon. A second day of hearing was required, although, in total, the hearing ran for a little less than two hours.

3. The Minister sought costs for the extra day of hearing. The parties agreed that the question of costs was best reserved until after judgment was delivered. However, the day before the delivery of judgment, the parties advised chambers that they had agreed that, if the Minister were successful, the appropriate costs order would be for an additional $640 over and above the usual $7,467. 

4. That seems reasonable to me.  Consequently, there will be an order for the applicant to pay the Minister’s costs of the proceeding, fixed in the sum of $8,107.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:          29 April 2020