FTL17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FTL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1106

File number(s):

SYG 4036 of 2017

Judgment of:

JUDGE LAING

Date of judgment:

30 November 2023

Catchwords:

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to exercise its power, or consider exercising its power, to invite new information – whether the IAA erred in how it dealt with new information in the manner contended by the applicant – application dismissed

Legislation:

Migration Act 1958 (Cth) Part 7AA; ss 5J, 425, 473CB, 473DC, 473DD, 473FB

Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494

CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502

DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550

Division:

Division 2 General Federal Law

Number of paragraphs:

41

Date of hearing:

11 September 2023

Place:

Sydney

Solicitor for the Applicant:

Mr S Hodges of Hodges Legal

Counsel for the First Respondent:

Mr T Reilly

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 4036 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FTL17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	30 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application be 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 LAING:

1. Before the Court is an application for judicial review of a decision by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival in 2013.

3. On 26 July 2016, the applicant applied for a protection visa.

4. On 16 February 2017, the Delegate refused the application. The matter was referred to the IAA for review.

5. On 30 November 2017, the IAA affirmed the Delegate’s decision.

   THE IAA’S DECISION

6. The IAA stated that it had considered the information provided by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act).

7. The IAA identified new information that had been provided after the Delegate’s decision. As this is a focus of the grounds of review, it is appropriate to set it out reasonably fulsomely.

8. The IAA identified that a new claim had been made by the applicant that he was an anonymous secret member of the Liberation Tigers of Tamil Eelam (LTTE). The IAA found that this new claim did not meet the requirements of s 473DD of the Act, and therefore could not be considered, for the following reasons (at [5]-[6]):

   5.The information relates to events in Sri Lanka before the applicant left and therefore predates the delegate's decision. The applicant apologises for not having disclosed this information earlier. His explanation for not doing so was his anxiety and fear for his life; he was afraid he might be sent back to Sri Lanka. I accept that a person with the history that the applicant now claims may initially fear disclosing his LTTE membership for the reasons stated. I am also mindful that the protection process is often a difficult and stressful experience for applicants. However, the applicant has not explained why his fear has only now, after he was informed of the delegate's decision, sufficiently abated for him to disclose this significant new claim. Further, this claim is nothing more than a bare assertion; no details have been provided, for example, when and where he joined, for how long he was a member, how he performed that work, or any other information which would persuade me of the credibility of this claim. The applicant has not satisfied me the information could not have been given to the Minister prior to the decision being made nor that the new information regarding his membership of the LTTE is credible personal information which if known, may have affected consideration of the claims: s.473DD(b).

   6.The applicant has been assisted by a registered migration agent who has assisted him with lodging his SHEV application and who was present throughout his SHEV interview. At that interview, the delegate explained to the applicant the importance of giving the Department all his protection claims at that stage as he might not have another chance to do so. The applicant was also specifically asked if there was any information in his application that he wished to add, change or correct. He answered no. Towards the end of the interview, there was a break in order to give the applicant an opportunity in private to discuss his claims with his representative and at the end of the interview, the delegate asked the applicant whether he had put forward all his claims (he said yes) and also told him that any additional information provided would be considered prior to the decision being made. There was no indication from the delegate that the claims put forward by the applicant were insufficient to engage Australia's protection obligations. While the delegate's decision was made a relatively short period after his interview (6 days) I nevertheless consider this adequate for the applicant to have discussed the new claim with his representative, raise any concerns he had that may have prevented the earlier disclosure of the claim and discuss the fears he stated had prevented him from disclosing the information he now seeks to rely on. In light of all of the factors referred to above, I am not satisfied that there are exceptional circumstances to justify considering the new information.

9. New information contained within a further document, a “Parliamentarian’s letter”, was also found not to meet the requirements of s 473DD of the Act. In this regard, the Tribunal reasoned (at [7]):

   7.The letter is dated 18 March 2017. The letter was not before the delegate and is new information. It is, on its face, information that concerns the applicant personally. Given the date of the letter I accept it could not have been provided earlier. However, in addition to stating the applicant was an underground member of the LTTE, the letter makes the following new claims: firstly, that the Army and Army Intelligence had tried to arrest the applicant on information given to them by some other members of the LTTE who had been arrested in Colombo; and secondly, that the Army and intelligence units had been harassing his mother and brother for information on the applicant's whereabouts. Neither of these claims have been made by the applicant. In his SHEV interview the applicant stated that he went back to work for the same employer after his arrest in 2012/13 and experienced no further problems for the three months he kept working there until he left for Australia. He also stated that, with the exception of the passport incident (considered below) nothing had happened to his family since he left. This new information directly contradicts the applicant's earlier evidence. The applicant has not satisfied me that the new information (the letter) is credible personal information. While I accept the letter, given its date, could not have been provided before the Minister made the decision, it appears to have been obtained for the purpose of supporting the applicant's claims. It also appears to relate to matters that pre-date the delegate's decision for protection and no explanation has been provided regarding why it could not have been obtained earlier. The applicant has not satisfied me as to the matters in s.473DD(b) nor am I satisfied that exceptional circumstances exist to justify considering the new information.

10. The IAA observed that on 18 April 2017, the applicant’s representative provided to the IAA a submission on behalf of the applicant. The submission included reference to additional country information and a link to a newspaper article that was not before the Delegate. While the IAA considered this to be new information, it did not accept it under s 473FB(5) of the Act in circumstances where its relevance had not been demonstrated and it did not comply with “Practice Direction for Applicants, Representatives and Authorised Recipients of 7 February 2017” (at [9]).

11. The IAA accepted that:

    (a)the applicant was a national of Sri Lanka, of Tamil ethnicity and Hindu faith (at [13]);

    (b)the applicant’s father was taken for questioning by the Sri Lankan army (SLA) some time ago and did not return home (at [16]);

    (c)the applicant’s uncle was shot by the SLA (at [17]);

    (d)the applicant had attracted adverse interest from the authorities due to his role as a driver, which resulted in him being detained and tortured in 2012, with the authorities interrogating him about people in photographs (at [14]-[15]);

    (e)some of the applicant’s personal information may have been inadvertently disclosed online in 2014 (at [27]);

    (f)the applicant would be identifiable as an unsuccessful asylum seeker from Australia due to the manner of his return to Sri Lanka (at [28]); and

    (g)the applicant left Sri Lanka illegally (at [31]).

12. The IAA did not accept that:

    (a)the applicant’s father was an LTTE supporter, in circumstances where the applicant had given inconsistent evidence between his entry interview and written statement accompanying his protection visa application as to the political group with which his father was claimed to have been involved (at [16]);

    (b)the applicant’s uncle was shot on account of his father’s LTTE involvement, or that this had ongoing consequences or risk for the applicant more than 30 years later (at [17]);

    (c)the Criminal Investigations Department went to the applicant’s parent’s home after his departure searching for him, assaulted his stepfather and forcibly took his mother’s, stepfather’s and the applicant’s passports (at [18]-[19]). The IAA observed that the applicant had indicated that his passport was at his family home during his (subsequent) entry interview and his evidence at interview did not match his written claims;

    (d)the applicant would face a real chance of relevant harm on the basis that he recognised some of the people in photographs shown to him when he was detained. This was in circumstances where this was not claimed to have been known to the authorities (at [21]);

    (e)the applicant would be implicated in terrorism or illegal transport offences relating to the transport of LTTE cadres, noting that the applicant had been frequently stopped at checkpoints, his boss had experienced no adverse attention and the applicant had continued his work for months without further adverse interest after being detained and interrogated (at [22]);

    (f)the applicant would be at risk of harm due to perceived support for the LTTE. In this regard, the IAA found that the applicant’s detention and interrogation appeared to have been an isolated incident with no ongoing repercussions for the applicant (at [23]);

    (g)the applicant would face a real chance of relevant harm on the basis of his Tamil ethnicity, imputed political opinion, family relationships, gender, age, previous detention, employment history or origins as a Tamil from the Northern Province (at [24]-[26]); or

    (h)the applicant would be at risk if someone else in the group he was processed with on return to Sri Lanka was of adverse interest to the authorities (at [29]).

13. The IAA also did not accept that the applicant would face a real chance of harm on account of the disclosure of his personal information in 2014. The IAA considered that the chances of the information being accessed were remote and that even if it were accessed, it would reveal no more than that the applicant had sought asylum in Australia. As this would be apparent from the applicant’s manner of return, the IAA was not satisfied that the disclosure increased the applicant’s risk of harm (at [28]).

14. In relation to the applicant’s illegal departure from Sri Lanka and potential return to Sri Lanka, the IAA accepted that the applicant was likely to be detained for several hours at the airport and may be detained for a number of days pending bail. He may also face a fine. However, having regard to available country information, the IAA was not satisfied that this would amount to a real chance of serious or significant harm (at [29]-[37] and [42]-[43]). The IAA also concluded that such treatment would be pursuant to a non-discriminatory law of general application and would not amount to persecution within the meaning of s 5J(4) (at [35]).

15. Having regard to the above, the IAA found that the applicant was unable to meet the criteria for a protection visa and affirmed the Delegate’s decision (at [38]-[45]).

    PROCEEDINGS BEFORE THIS COURT

16. The applicant commenced proceedings before this Court through an application filed on 22 December 2017. He ultimately relied upon an amended application filed on 28 August 2023 containing the following grounds:

    Ground 1

    The Authority committed jurisdictional error by acting unreasonably in not exercising its power, or not considering whether to exercise its power, under s 473DC(3) to invite the applicant to give new information orally or in writing.

    PARTICULARS

    a.At [10] the applicant claimed that his father was taken for questioning by the SLA in December 1987 and never returned home.

    b.The applicant claimed that he and his family believed that his father had been shot and killed by the SLA due to his profile as an LTTE supporter.

    c.Although the Authority accepted, at [16] that the applicant's father was taken for questioning and never returned, it was not accepted that the applicant's father was a supporter of the LTTE.

    d.The Authority reasoned that the present claim advanced by the applicant was contradictory to claims he had made in his entry interview on 25 September 2013.

    e.Specifically the Authority noted that in the entry interview the applicant stated that his father was a member of the Eelam People's Revolutionary Liberation Front (EPRL) which was against the government and the Tamil people,

    f.In his SHEV application, and on every occasion thereafter, the applicant claimed that his father was a supporter of the LTTE…

    h.The Authority made numerous adverse credibility findings based on evidence given by the applicant at earlier interviews, including in his entry interview;

    i.All of the material so impugned by the Authority had previously been considered by the delegate;

    j.The delegate found that there were no inconsistencies in the materials [CB page 129].

    k.The Authority thereby made its decision on the basis of issues not previously put or identified to the applicant, such that the applicant did not have an opportunity to comment on the perceived inconsistencies.

    l.The Authority did not exercise its power under s 473DC(3) and invite the applicant, or consider whether to exercise its power to invite the applicant, orally or in writing to give new information relating to the issues in paragraph 4.

    m.Further, in relation to the material cited in the new information ground (see below) the Authority impugned the letter from the applicant (finding it was not credible) without giving the applicant the opportunity to support it.

    n.The Authority in dealing with the letter (from the parliamentarian CB 183] acted unreasonably and denied the applicant procedural fairness.

    Ground 2

    The committed error in the manner in which it dealt with new information.

    (a)At [CB 182-183] the Authority considered what it referred to as a New Claim and new information.

    (b)The New Claim was that the applicant was an "anonymous secret" member of the LTTE.

    (c)The new information is a letter dated 18 March 2017 from a parliamentarian.

    (d)In general terms the parliamentarian's letter supports the applicant's new claim that he was an anonymous secret member of the LTTE.

    (e)In dealing with the New Claim and the new information, the Authority addressed them separately. The New Claim was rejected because the information predated the delegate's decision and that it was nothing more than an assertion, lacking details and there being no evidence that it was credible.

    (f)The Authority was in error in treating the new claim and letter as separate issues. They were both part of the same "new information”.

    (g)In dealing with the letter the Authority decided that "given its date" could not have been provided before the delegate made the decision thereby accepting that s473DD(b)(i) were satisfied.

    (h)The Authority then went on to consider both credible personal information and lack of explanation as to why the letter was not provided prior to the delegate's decision, both being matters that fall within the provisions of s473DD(b)(ii).

    (i)The Authority failed to consider the letter which gave particulars, details, credibility and otherwise supported the applicant's new claim to have been an anonymous and secret member of the LTTE.

    (j)The Authority's should have invited the applicant to appear or comment in writing to give evidence and or particulars to support his new claim.

    Ground 1

17. Ground 1 contended that the IAA unreasonably failed to exercise its power, or consider exercising its power, under s 473DC(3) of the Act. That provision was as follows:

    MIGRATION ACT 1958 - SECT 473DC

    Getting new information

    (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 Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)in writing; or

    (b)at an interview, whether conducted in person, by telephone or in any other way.

18. In support of this ground, the applicant relied upon DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17). In that case, the IAA was aware that the Delegate had accepted the applicant’s account regarding sexual assaults through reliance upon demeanour at interview. The IAA subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the IAA relied upon inconsistencies the Delegate had indicated would not be given substantial weight. It was found to have been legally unreasonable in that case for the IAA not to have considered exercising the power under s 473DC of the Act in the absence of sufficient independent evidentiary basis being available to the IAA to depart from the Delegate’s assessment without inviting the applicant to an interview and conducting its own assessment of his demeanour.

1. The Minister also referred in written submissions to the cases of Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16) and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17).

2. In what was described as the “extreme” circumstances of DUA16, the IAA was aware that an applicant (CHK16) had intended to provide it with submissions, but their agent had inadvertently provided submissions regarding another person. It was found to have been unreasonable of the IAA to have undertaken no inquiry in this regard.

3. In ABT17, the IAA was found to have acted unreasonably in not undertaking its own assessment of the applicant’s demeanour through an interview when assessing the applicant’s credibility. This was in circumstances where the IAA departed from the Delegate’s favourable assessment of credibility based upon its own assessment of the manner in which evidence had been given in an audio recording of the applicant’s interview (at [25] per Kiefel CJ, Bell J, Gageler J (as his Honour was) and Keane J).

4. As will be apparent from the above, these cases occurred within particular factual contexts. It is to be recalled that the general position intended by the legislature under Part 7AA is that the IAA is under no obligation to invite applicants to an interview. This position is not generally displaced simply because the IAA elects to decide the matter on a different basis to the Delegate: ABT17 at [24] per Kiefel CJ, Bell J, Gageler J (as his Honour was) and Keane J and CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502 (CVP17) at [46] per O'Bryan J. Questions of reasonableness are inevitably factually specific. Their answers will depend upon the particular circumstances of each case.

5. The applicant submitted that the non-exercise of the discretion to invite further information was legally unreasonable in the present case in circumstances where:

   (a)the IAA was said to have found inconsistency in the applicant’s evidence where the Delegate “found that there were no inconsistencies in the materials”; and

   (b)the IAA was said to have unreasonably failed to exercise, or consider exercising, its power to obtain new information under s 473DC(3) in relation to the new information that was provided by the applicant.

6. I accept that the Delegate regarded the applicant’s claims as generally consistent. Whilst the Delegate did not consider inconsistencies identified by the IAA, the Delegate’s reasoning in this regard was limited and does not appear to have engaged with all of the material that was before them (including all of the applicant’s claims). Interestingly, the Delegate accepted that the applicant’s father was a member of the Eelam People's Revolutionary Liberation Front, which was the claim that had been made by the applicant during his entry interview. This was notwithstanding the applicant’s subsequent claims that it was the LTTE that his father had supported.

7. In any event, the fact that the IAA took a different view of the evidence, without more, is insufficient to demonstrate that the non-exercise of discretion under s 473DC(3) of the Act was legally unreasonable: see ABT17 at [24] and CVP17 at [47]. Assessment of legal unreasonableness in this regard is not to be undertaken through a procedural fairness lens i.e., on the basis that the applicant was entitled to be afforded the opportunity to respond to issues with his evidence that had not been previously raised: ABT17 at [24] and CVP17 at [47]. Such an entitlement is not supported by the statutory scheme under Part 7AA of the Act, which contains no counterpart to s 425.

8. This was not a case such as DPI17, in which the IAA departed from the Delegate’s favourable findings based upon demeanour without undertaking its own assessment. Nor is it a case such as ABT17, in which the presentation of the applicant’s evidence was the focus of the IAA’s concern without access to its visual presentation. The IAA’s reasoning does not appear to have been affected by any “informational gap” regarding the evidence available to it as distinct from that which had been available to the Delegate. Instead, the impugned parts of the IAA’s reasoning were based upon assessment of more objectively identifiable matters such as inconsistencies in the evidence that was before it. I am not persuaded that the fact that the Delegate had not relied upon such inconsistencies rendered the non-exercise of power under s 473DC of the Act legally unreasonable.

9. At hearing, the applicant generally submitted that an interview would have provided the IAA with an opportunity to obtain up-to-date and relevant evidence that may have assisted the IAA in coming to its decision. That may be so, but that does not explain why the IAA was obliged to afford the applicant such an opportunity in the circumstances of this particular case. Such an opportunity is not generally contemplated as being required to be afforded to an applicant under Part 7AA of the Act.

10. In relation to the new information, the applicant has not adequately explained why I should infer that the IAA did not consider exercising its discretion under s 473DC(3) of the Act, nor why non-exercise of that discretion to invite further information from the applicant was legally unreasonable. The IAA was under no general obligation to invite the applicant to provide further information before finding that new information that he had provided did not meet the requirements of s 473DD. It is not clear why the applicant contends that he was not given the opportunity to support the new information that he provided. That opportunity was afforded to him when he provided the material to the IAA. The applicant has not demonstrated that the statutory scheme, or the requirements of legal reasonableness, required a further opportunity to be given in the circumstances of this case.

11. Having regard to the above, I am not persuaded that the IAA’s non-exercise of discretion to invite the applicant to an interview is capable of meeting the high threshold associated with a ground of legal unreasonableness. Nor am I persuaded that it has been demonstrated that the IAA failed to consider exercising its discretion in this regard, or fell into jurisdictional error by not doing so.

12. Ground 1 is therefore unable to succeed.

    Ground 2

13. Ground 2 concerned the IAA’s application of s 473DD of the Act. That provision was as follows:

    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.

14. Under ground 2, the applicant complained that the IAA dealt with the applicant’s “New Claim” to have been a secret member of the LTTE separately from the “Parliamentarian’s letter” at [4]-[7] of its reasoning. The claim and letter were contended to have been “part of the same” new information. The IAA was contended to have failed to consider that the letter gave details and support to the applicant’s claimed involvement with the LTTE. Reliance was placed upon AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17), in which it was stated (inter alia) at [10]-[11] per Kiefel CJ, Gageler J (as his Honour was), Keane and Gordon JJ (footnotes omitted):

    10.Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

    11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a)…

15. I accept the Minister’s submission that the contended basis of the ground was not made entirely clear by the applicant.

16. I am not persuaded that the IAA overlooked the relationship between the new claim and the letter, simply because these parts of the new information were dealt with in successive paragraphs in its reasoning. It is apparent from the reference in [7] to the letter “stating that the applicant was an underground member of the LTTE” that the relationship between the claim and the letter was appreciated. However, I do not accept that the IAA was obliged to reason that the letter adequately particularised the claims made in the applicant’s statement. In particular, the IAA was concerned that the applicant had not provided details of when and where he joined, how long he was a member or how he performed the work. Those details were not provided in the “Parliamentarian’s letter” beyond reference to transportation of LTTE members to Colombo and lodging them there. The applicant had otherwise claimed to have been transporting passengers to Colombo, at least some of whom were suspected of involvement with the LTTE.

17. I accept that the letter provided further claims regarding the applicant that had not been made by the applicant. However, this was part of the IAA’s concern with the credibility of the letter. The IAA was concerned at [7] that the letter made claims that had not been advanced by the applicant, and were in some respects inconsistent with the claims that had been advanced by the applicant.

18. I am therefore not persuaded that the IAA misunderstood or failed to consider the collective persuasive force of the claim and the “Parliamentarian’s letter” in finding that they did not meet s 473DD of the Act. It was open to the IAA to have nonetheless not accepted that either were credible personal information for the purposes of s 473DD(b) of the Act, given the timing and limited detail of the claim, and the fact that the “Parliamentarian’s letter” otherwise contradicted evidence that had been given by the applicant.

19. The IAA’s reasoning in this regard is set out above. In both instances, the IAA considered the new information against (i) and (ii) of s 473DD(b) before finding that it was not satisfied that there were exceptional circumstances within the meaning of s 473DD(a). This approach was consistent with AUS17.

20. For the reasons given under ground 1, I am not persuaded that the IAA was required to invite the applicant to give further evidence or particulars in support of his new claim. Whilst the applicant had indicated the contact details for the “Parliamentarian”, the applicant (after some discussion) clarified at hearing that he did not contend that it was legally unreasonable for the IAA not to have sought further information from that person directly. The applicant has not demonstrated that it was unreasonable for the IAA not to have sought further information from the applicant regarding his new claim. Such information could conceivably have been provided by the applicant in his letter, had the applicant wished to have provided further information in this regard. The IAA was not bound to consider that the new information relied upon by the applicant was credible, nor to have given the applicant further opportunity to comment before finding that it was not.

21. Ground 2 is therefore unable to succeed.

    CONCLUSION

22. For the reasons given above, the application must be dismissed.

23. I will hear from the parties in relation to costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Deputy Associate:

Dated:       30 November 2023