FEDERAL COURT OF AUSTRALIA

APC17 v Minister for Immigration and Border Protection [2018] FCA 1332

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge be set aside and in lieu thereof:

(a)    a writ of certiorari issue quashing the decision of 19 January 2017 of the second respondent;

(b)    remit the matter to the second respondent for determination according to law.

3.    The first respondent pay the appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1    The appellant appeals from orders of the Federal Circuit Court of Australia made on 12 March 2018. The Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 19 January 2017. The Authority had affirmed the decision made on 14 September 2016 of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Safe Haven Enterprise Visa (SHEV).

Background

2    The appellant is a citizen of Sri Lanka who arrived in Australia by boat via the Cocos (Keeling) Islands on 25 September 2012.

3    He claimed to fear harm in Sri Lanka on the basis of his Tamil ethnicity, imputed political opinion, and as a failed asylum seeker who left Sri Lanka illegally. In his SHEV application, he claimed his younger brother was killed in a shelling attack carried out by the Sri Lankan Army (SLA) in 2009. There was no suggestion made by the appellant in his SHEV application or to the delegate that he knew that his brother was associated with the Liberation Tigers of Tamil Eelam (LTTE).

4    The appellant also asserted his uncle was involved in the LTTE. He alleged he was forcibly taken from his home in a van and forced to vote for the Eelam People’s Democratic Party (EPDP) in July 2011. He claimed that, in June 2012, when working at a driving school in Jaffna, four members of the EPDP pressured him to pass two of them and grant them licences. He claimed that he was stopped on 1 July 2012 by an SLA officer and questioned for 45 minutes with a gun pointed at his chest. He claimed he had similar experiences with the SLA on three other occasions in 2012. It was these events which the appellant claimed led to him departing Sri Lanka on 9 September 2012. He claimed that since departing Sri Lanka, he had been told by his aunt that army and/or civilians had gone to their home asking about his and his uncle’s whereabouts. The appellant claimed that the authorities had also attended his mother’s home and asked about the appellant and his uncle. For the first time at the SHEV interview, the appellant raised a claim that his family was in a property dispute over farming land with a Tamil- speaking Sinhalese man from Colombo

5    The delegate made a decision refusing to grant a SHEV on 14 September 2016. She recorded in her decision: “By his own statements at interview, no members of his immediate family were members, or were specifically suspected of having links to the LTTE other than a general suspicion of all Tamils”.

THE AUTHORITY

6    The delegate’s decision was a “fast track reviewable decision” within the meaning of Part 7AA of the Migration Act 1958 (Cth). On 19 September 2016, the delegate’s decision was referred to the Authority for review in accordance with s 473CA of the Act.

7    The appellant provided submissions to the Authority dated 24 October 2016. In those submissions, he claimed his brother was a member of the LTTE. He stated:

After my interview with the Department of Immigration and Border Protection on 16th of February 2016, I learned through friends that a photo of my brother … in a LTTE uniform had been published as a martyr on Facebook … Now I realise the reason for the Sri Lankan army desecrating my brother’s body when he was killed.

8    The appellant claimed that the authorities would target him on return to Sri Lanka because of his brother’s involvement in the LTTE. He claimed that “the authorities are now showing interest in me again because they have evidence my brother was in LTTE” and that they “have been visiting my mother and sister and threatening them and even making death threats against me”.

9    At all times before this submission, consistently with what the delegate stated (set out at [5] above), the appellant had contended that he was not aware that his brother had been involved with the LTTE. The claim made in the submission did not expressly state whether the appellant’s claim was that the Sri Lankan authorities first became aware that the appellant’s brother was involved with the LTTE:

(1)    at the time his brother’s body was desecrated in 2009;

(2)    at some other later time when the applicant had come to the attention of the authorities, including in 2012; or

(3)    not until 2016 because of the Facebook page.

10    The Authority, in its reasons, noted that the appellant had provided to it a submission which contained new documents and new claims. No complaint was made to the Federal Circuit Court concerning the way in which the Authority dealt with the new documents and the new claims. The appellant was legally represented before the Federal Circuit Court.

11    The Federal Circuit Court adopted the following summary, taken from the Minister’s submissions, of the Authority’s reasons:

The Authority made a decision on 19 January 2017. As part of its reasons it set out its consideration of the new information provided by the applicant to it after the delegate’s decision. No complaint is made about the Authority’s reasoning in that respect. Otherwise, its reasons for decision are summarised at [3]-[10] of the respondent’s submissions as set out below, which again I adopt as accurate.

3.     The Authority found the applicant’s evidence to be generally consistent with country information about the systematic mistreatment and harm of Tamils during the civil war (pars 17-19). However, the Authority found it “significant” that the applicant had never claimed to have faced an extended detention or other more serious interrogation and mistreatment (such as torture) from the EPDP, SLA, CID or any Sri Lankan authority. The Authority concluded the applicant was “never seriously” considered by the SLA or authorities to be connected or associated with the LTTE. The Authority also noted the applicant was issued a passport in June 2012, which was another “potential indicator” he was not considered a security risk by the authorities (par 20).

4.     While the Authority accepted the applicant’s aunt and mother may have been questioned about his and his uncle’s whereabouts, the Authority was not satisfied this was indicative of any profile or connection to the LTTE, or that the authorities were interested in him for any reason other than the fact that he was absent from his home area (par 22). Further, the Authority held the applicant’s knowledge of his uncle and claimed involvement in the LTTE to be vague. The Authority did not accept the applicant’s uncle had an LTTE profile or had any connection to the applicant, other than a “distant family connection” (par 23) and concluded the applicant had no connection to the LTTE, nor did he support the group (pars 24-25).

5.     The Authority found it difficult to accept the applicant’s brother could be involved with the LTTE without his family’s knowledge, “even allowing” for their displacement during the conflict (par 28). The Authority found the applicant and his family knew of the brother’s involvement with the LTTE, and this was why his body was desecrated after he was killed in a shelling accident. The Authority held the applicant sought to conceal the brother’s involvement, “perhaps” through fear of the implications for his application (par 31). The Authority was satisfied no further serious harm or interest came to the applicant, or his family, from, this brother’s involvement and that “any connection” he had through his immediate family was “severed” on the death of his brother (par 32).

6.     On the basis of country information, the Authority did not accept that the applicant’s time in Australia, as an asylum seeker, would impute him with any LTTE profile (par 34). Nor did it accept that the applicant would face a real chance of being seriously harmed on return to Sri Lanka as a Tamil Hindu and a Tamil male returning to the north of the country (par 37). In view of the country information about the improved situation for Tamils, the Authority found there was not a real chance of the applicant being targeted for reasons of his ethnicity, religion, language, through any imputed or actual political opinion or association with the LTTE as a result of being a Tamil from the north, or for his past family connections to the LTTE (par 42-44).

7.     The Authority accepted the applicant had been threatened by the EPDP at the driving school in 2012, forcibly taken by the EPDP and forced to vote for an EPDP candidate during elections in 2011. However, the Authority found he was not of ongoing interest to the EPDP after the incidents. The Authority also accepted his family had faced issues accessing utilities due to EPDP influence. However, given the applicant’s lack of any ongoing profile with the EPDP, his low level support of the TNA, the diminishing presence of the EPDP, and the increased presence and influence of the TNA in the north of the country, the Authority was not satisfied there was not a real chance of the applicant, or his family, facing serious harm from the EPDP for any reason should he return to live in Sri Lanka. For those reasons, the Authority also found there was not a real chance that the applicant’s family would continue to be denied access to essential utilities through EPDP corruption and influence (par 55).

8.     In relation to the property claim raised at the SHEV interview, the Authority found the applicants evidence that the men who threatened his mother were with the SLA or CID, to be speculative (par 67). The Authority noted that many Tamils had difficulties in accessing basis necessities such as shelter, food, water and sanitation when returning to their home areas (par 68) and did not accept the family was being targeted by the SLA or CJD to acquire their property, or because he was in Australia (par 69). The Authority was not satisfied that the “private dispute” was motivated by any of the grounds under s 5J(l) of the Migration Act 1958 (the Act) and it followed that any harm the applicant and his family would face in connection with the property dispute was not persecution for the purposes of the Act (par 70).

9.     The Authority considered country information about entry procedures upon arrival in Sri Lanka and was satisfied that upon return the applicant would be held on remand for a number of hours and then released or discharged upon payment of a fine or bail (par 78). The Authority found that there was no evidence to indicate that the applicant would not be able to pay the fine or bail imposed in relation to his illegal departure (par 79). As the Authority did not accept that the applicant had links or would be perceived as having links to the LTTE, it was satisfied that the applicant would not be detained for a lengthy period of [sic] subjected to serious harm or significant harm (par 83). It found that the procedures the applicant would undergo on return did not amount to serious harm and was satisfied that he would be charged, convicted and fined for his illegal departure but this did not amount to serious or significant harm (par 83). As a separate and independent basis for finding the applicant would not be at a real risk of serious harm, the Authority was satisfied that the provisions and penalties of the [Immigrants and Emigrants Act 1948 (Sri Lanka)] were the result of a law of general application and would not constitute persecution for the purposes of the Act (par 85). It followed that the applicant did not meet the criteria in s 36(2)(a) (par 87).

10.     Having not accepted that the applicant faced a real chance of harm on return to Sri Lanka (pars 90-92), the Authority was also not satisfied that the applicant would face significant harm for any of those reasons (par 93). The Authority concluded the applicant did not meet s 36(2)(aa) of the Act (par 94).

THE FEDERAL CIRCUIT COURT

12    There were two grounds of review advanced before the Federal Circuit Court. The first was that the Authority erred in assuming, without consideration, that threats which do not lead to violence or detention cannot amount to serious harm and so the Authority failed to consider a component of the applicant’s claim. This ground turned on paragraph [20] of the Authority’s reasons, which was in the following terms:

While I accept the harm experienced by the applicant and his family, I find it significant that the applicant has never claimed to have faced an extended detention (in terms of days or longer) or other more serious interrogation and mistreatment such as torture from the EPDP, the [Sri Lankan Army (SLA)], the CID [Criminal Investigations Department] or any Sri Lankan authority. This indicates to me that while he may have been questioned about LTTE involvement as a Tamil male living in these areas, he was never seriously considered by the SLA or the authorities to be connected or associated with the group. If it were otherwise, I find that he would have been detained for more in severe interrogation or subject to harsher treatment, as many Tamils who were seriously suspected of LTTE involvement were during and after the civil war. I note the applicant was issued a passport in June 2012, which is another potential indicator he was not considered a security risk by the authorities.

13    As to this argument the Federal Circuit Court stated (at [8]-[11]):

8.     In his written submissions, the applicant argues that by making the finding in [20] that it was significant that the applicant had never claimed to face an extended detention or other more serious interrogation or mistreatment, the Authority placed undue weight on that [sic] fact that the applicant was never detained, and in doing so failed to consider that the threat of harm may amount to persecution.

9.     In my view, that argument reveals a fundamental misunderstanding of the Authority’s reasons. The Authority considered, as it was required to, what might occur to the applicant in the future. It did so by reference to two sources of information. First, what the applicant had said had happened to him, which it largely accepted, and secondly, country information about what treatment was dealt out to those with LTTE connections by the Sri Lankan authorities in the past. It was essentially the difference between those two that was the subject of comment in [20].

10.     That difference was significant in the view of the Authority because, in assessing the future prospect of harm, the Authority relied upon country information concerning the potential treatment of Tamils that indicated those with links to the LTTE were at risk. Once the Authority’s reasons were understood and particularly on the basis of the whole of the Authority’s reasons, there is no error as asserted in the ground. The Authority properly assessed what might occur to the applicant in the future on the basis of the inferences drawn from both of the two sources of information to which I have referred.

11.     The Authority specifically dealt with the possibility of serious harm or persecution occurring to the applicant in the future by reference to what had occurred in the past and in particular, because of any connection that might be perceived with the applicant’s brother and uncle. For those reasons, the first ground is rejected.

14    Ground two was that the Authority incorrectly stated the applicant’s claims and applied the wrong test in considering the applicant’s imputed links to the LTTE.

15    As to this, the Federal Circuit Court stated (at [13]-[17]):

13.     … It was argued that the Authority did not properly assess the risk to the applicant should he be returned because of his family links with his brother “who was an LTTE member, possibly fighter or ‘cadre’”. In my view, this ground really only takes issue with the merits of the Tribunal’s finding.

14.    The fact that it does so is revealed by submissions, such as that the Authority did not properly assess the matter or did not properly analyse the risk of the claims. Inherent in the use of the word, “properly” is an assertion that the Authority made wrong findings about those claims. When the Authority’s reasons are understood there is, in my view, no error involved in its dealings with the claims made by the applicant in respect of his brother, as accepted by the applicant. The Authority found at [36] that there were “serious risks for those with genuine LTTE connections in Sri Lanka”.

15.     The Authority was satisfied that the applicant had no such connections and so that there was no real chance of the applicant being seriously harmed for those reasons. The basis upon which it arrived at that conclusion included its finding that the applicant’s brother had been involved in the LTTE, but that the authorities were aware of this when the applicant had come to the attention of the authorities, including in 2012.

16.     Critically, and this echoes what was referred to by the Authority in [20] of its reasons, the Authority relied on the basis of the information before it, (reference to which was given in its decision), that had there been any determination that the applicant was involved in, or had a real connection to the LTTE, or had the applicant been suspected of that involvement, the applicant would have faced a longer term of detention, interrogation and severe mistreatment, including torture. Thus, it was on the basis of acceptance of part of the applicant’s claims in comparison with the other information before it, that the Authority came to the view that there was no real risk of serious harm or persecution in the future on the basis of the applicant’s connection to his brother, who was accepted to have been a member of the LTTE.

17.     In that way, the Authority’s conclusions were based upon logical reasoning from inferences that were open on the material before it. It expressly dealt with the claim raised by the applicant and for that reason, did not fall into jurisdictional error in the way asserted in the second ground.

THE APPEAL

16    The appellant filed a notice of appeal on 3 April 2018. It contained two grounds of appeal. These contended that the Federal Circuit Court erred in not finding that there had been jurisdictional error on the part of the Authority on the basis of the two grounds which had been advanced to the Federal Circuit Court.

17    At the hearing on 6 August 2018, the appellant sought leave to rely on an amended notice of appeal. The amended notice of appeal abandoned the two grounds of appeal initially relied upon and sought to introduce a substantially new case comprising seven grounds of appeal. During argument on the appeal, proposed grounds six and seven were abandoned.

18    At the core of the new case is a challenge to the conclusion of the Authority that the SLA not only desecrated the body of the appellant’s brother in 2009 but also identified the body at that time.

19    The first issue is whether leave should be granted to raise new grounds.

Leave to raise new grounds

20    A party is generally bound by the way in which the case was conducted at first instance: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19].

21    However, a party may be granted leave to raise new arguments on appeal where it is in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-9.

22    Considerations which are relevant were identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] as including:

1)     Do the new legal arguments have a reasonable prospect of success?

2)     Is there an acceptable explanation of why they were not raised below?

3)     How much dislocation to the court and efficient use of judicial sitting time is really involved?

4)     What is at stake in the case for the appellant?

5)     Will the resolution of the issues raised have any importance beyond the case at hand?

6)     Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)     If so, can it be justly and practicably cured?

8)     If not, where, in all the circumstances, do the interests of justice lie?

23    The consequences to the appellant of not being granted a protection visa are serious. There is no real prejudice to the Minister. Those matters weigh in favour of granting leave.

24    On the other hand, the appellant was legally represented before the Federal Circuit Court. It was submitted that a complaint had been made against the appellant’s former representatives with the Office of the Legal Services Commissioner. The complaint was said to be under consideration and to include an allegation of failure to take instructions competently in respect of the Federal Circuit Court proceedings.

25    The Minister, properly, did not submit that leave should be refused in respect of ground one, conceding that it was plainly arguable.

26    For the reasons which follow, leave to appeal is granted in respect of ground one and the appeal should be allowed. Leave to appeal in respect of the remaining grounds is refused for the reasons identified below.

Ground 1 – Particulars 1, 2 and 6

27    Ground one of the amended notice of appeal was in the following terms:

The Federal Circuit Court erred, by failing to find that the decision of the Second Respondent was affected by jurisdictional error:

•    through the inference that the Sri Lankan Army not only desecrated but also identified the body of the applicant’s brother in 2009;

•    through the resultant expectation that the applicant had likely already been questioned about the brother’s membership in the LTTE;

•    through the unreasonable finding that the death of the brother severed any connection between the applicant and the LTTE;

•    through the finding that the applicant therefore had no genuine connection to the LTTE in Sri Lanka; …

28    Ground one was supported by six particulars. Particulars one, two and six were, in substance:

(1)    Particulars one and two: the inference made by the Authority that, because the SLA desecrated the brother’s body in 2009, they therefore also must have known his name and identity at that time, was illogical or made without probative evidence.

(2)    Particular six: the Authority misunderstood the new claim made by the appellant. The Authority understood the appellant’s claim as being that the Sri Lankan authorities knew in 2009 not only that the desecrated body was that of a person who had been involved with the LTTE, but that they also knew the identity of the desecrated body as being that of the appellant’s brother. The Authority understood the claim to include that the Facebook post in 2016 gave the Sri Lankan authorities proof of something the Sri Lankan authorities already knew. The applicant’s actual claim, properly understood, was that the Sri Lankan authorities first became aware of the brother’s identity as an LTTE cadre through the Facebook martyrs’ page post in 2016 and, as a consequence of this information coming to the attention of the Sri Lankan authorities for the first time in 2016, they had been visiting his mother and sister and making death threats against the appellant.

29    It is appropriate to consider particular six first because it is necessary to approach the Authority’s reasons in light of the claim in fact made by the appellant.

30    As noted above, the new claim made in the submission did not expressly state whether the appellant’s claim was that the Sri Lankan authorities first became aware that the appellant’s brother was involved with the LTTE:

(1)    at the time his brother’s body was desecrated in 2009;

(2)    at some other later time when the applicant had come to the attention of the authorities, including in 2012; or

(3)    not until 2016 because of the Facebook page.

31    Whilst not express and although the submission was ambiguous, it was sufficiently clear that the appellant’s new claim was that the Authority first became aware of the identity of the appellant’s brother only in 2016. That is also supported by the following:

(1)    Up until the submission made to the Authority, the appellant’s claim had been put on the basis that his direct family, including his brother, were not involved with the LTTE. That case had been put consistently at all times including before the delegate.

(2)    Another feature of the appellant’s case at all times before the matter was referred to the Authority, and after that referral, was that he had not ever been questioned by the Sri Lankan authorities about his brother’s involvement with the LTTE.

(3)    Accordingly, his claim could not sensibly be understood as having been that the Sri Lankan authorities knew about his brother’s involvement with the LTTE in 2009 or some later time when the appellant had come to the attention of the authorities, including in 2012. If that had been his claim, he would undoubtedly have been questioned about his brother’s involvement.

32    The next question is whether the Authority understood that this was the claim being made. The Authority’s reasons are to be read as a whole, in a common-sense manner and are not to be construed minutely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. A reading in accordance with those principles suggests that the Authority:

(1)    assumed that the appellant’s claim necessarily involved the corollary that the Sri Lankan authorities knew in 2009 that the body which had been desecrated was that of the appellant’s brother (who he was), rather than simply knowing it was the body of an LTTE cadre (what he was);

(2)    therefore, did not consider whether it should make a finding or draw an inference about:

(a)    when the Sri Lankan authorities learned of the identity of the desecrated body or that the appellant’s brother had been involved with the LTTE; or

(b)    whether the Sri Lankan authorities only first learned of the involvement of the appellant’s brother with the LTTE in 2016 because of the Facebook page.

33    The reasons for those conclusions are as follows.

34    First, at no point in the Authority’s written statement made under s 473EA (which includes the reasons for decision) did the Authority expressly state when it considered that the Sri Lankan authorities first came to identify the desecrated body as that of the appellant’s brother (who he was), rather than simply as the body of a deceased LTTE cadre (what he was). The reasons only contain an implicit conclusion that in 2009 the Sri Lankan authorities knew the identity of the body as being that of the appellant’s brother. At A[29], the Authority stated:

The applicant claimed that his brother’s body was desecrated and that he now knows that this was because he was in the LTTE. If, as he claims, his brother’s body was desecrated because of his LTTE involvement, this indicates the SLA and the authorities already knew of his brother’s involvement with the LTTE when he died in 2009. However, I note that he has not claimed to have been questioned by the authorities in the past about his brother’s involvement with the LTTE.

35    This passage contains a finding by the Authority that the SLA and the authorities knew that the body which had been desecrated was the body of someone involved with the LTTE. This paragraph does not contain an express finding that the SLA and the authorities knew the identity of the deceased person. However, it was common ground that the Authority implicitly concluded or assumed that the SLA and Sri Lankan authorities knew of the identity of the desecrated body by the time the appellant was questioned in 2012. This is made clear at A[32], where the Authority stated (emphasis added):

However, I am satisfied that no further serious harm or interest came to the applicant or his family from his brother’s involvement. The applicant himself had no involvement in the LTTE, and any connection he had through his immediate family was severed on the death of his brother. In his recent submission, he has not revised his earlier claims about being questioned by the authorities. He has not since claimed that he was ever detained by the authorities for long periods, or suffered interrogation, ill-treatment or torture. I expect he was likely questioned by the authorities about his brother’s involvement and mistreated during his time in the camps, and in the later times when he was detained by the SLA, but I am satisfied that it would have been determined that he had no involvement or connection to the LTTE. If he was suspected of any involvement, I am satisfied he would have faced longer term detention, interrogation and severe mistreatment including torture.

36    The implicit conclusion or assumption as to knowledge of identity in 2009 (or by 2012) was seen by the Authority to be the necessary consequence of the appellant’s claim as it understood it. That is made clear by the following sentence in A[29]:

… If, as he claims, his brother’s body was desecrated because of his LTTE involvement, this indicates the SLA and the authorities already knew of his brother’s involvement with the LTTE when he died in 2009 …

37    Nowhere did the Authority make an express or reasoned finding of fact that the Sri Lankan authorities knew the identity of the appellant’s brother in 2009 or by 2012. No reasons were set out for reaching that conclusion rather than one of the other possible inferences which could have been drawn from the accepted facts. That is, the Authority assumed that – if the brother’s body was desecrated because of his LTTE involvement – this necessarily meant the SLA knew the identity of the brother. It was at least an equally available inference that the SLA knew the body was that of an LTTE cadre, but not the identity of the deceased person. This was not a case of the Authority choosing between different inferences which might be drawn from primary findings of fact or agreed facts. This was a case of the Authority either: (a) assuming, incorrectly, that only one inference was available; or (b) understanding, incorrectly, that the claim being made involved the proposition that the SLA knew the identity of the body when it was desecrated in 2009.

38    Secondly, at no point in the Authority’s reasons does it state that the appellant’s case was that the Sri Lankan authorities first learned of the appellant’s brother’s involvement with the LTTE in 2016. Nowhere in the reasons does the Authority identify that it rejected that claim or why it rejected that claim. The absence of a reference to that being the claim made and the absence of an express identification of why that claim was rejected is a matter which, together with the matters identified above, indicates that the Authority did not understand the claim as having been made.

39    The Authority summarised the new claim at A[4] where it said:

The submission also contains the following new claims:

•    Since the delegate’s decision, the applicant has found out that his brother was a second lieutenant in the LTTE, nicknamed [nom de geurre], through a Facebook page for LTTE martyrs. He claims his family was never aware of his brother’s LTTE involvement, but based on this new information he now knows why his brother’s body was desecrated in 2009.

•    He claims that together with the fact of his uncle [Y], who disappeared and was a bodyguard to an LTTE leader, and his work as a cashier in an LTTE operated bus service in 2008, the authorities are now showing interest in him again because they have evidence his brother was in the LTTE. They have been visiting his mother and sister and threatening them and making death threats against him. They know he is an asylum seeker and if he were to return to his home he would be at risk of serious harm.

40    At A[27], the Authority stated:

His evidence now is that the authorities have proof his brother was involved with the LTTE, presumably through the inclusion of his photo on the Facebook page dedicated to LTTE martyrs. He claims the authorities have been visiting his mother and sister and threatening them and making death threats against him.

41    These passages, read in context, show the Authority understood the claim to be that the Facebook page provided “evidence” or “proof” to the Sri Lankan authorities of the brother’s involvement with the LTTE. That is consistent with part of what the appellant’s submission expressly stated. However, as indicated above, the submission read as a whole and properly understood in context could only have been that the Facebook page provided proof of something the Sri Lankan authorities did not already know. The Authority assumed that the appellant’s claim involved the proposition, or necessarily required the conclusion, that the Facebook page provided proof of something the Sri Lankan authorities already knew.

42    It is necessary to approach the question of whether the decision of the Authority was affected by jurisdictional error from the perspective of the particular regime which Part 7AA establishes. The jurisdiction exercised by the Authority was the jurisdiction to “review” the fast track reviewable decision before it in accordance with Part 7AA of the Act. Part 7AA modifies what would otherwise be required by the rules of procedural fairness. Part 7AA gives a number of powers and discretions which must be exercised in a legally reasonable way. As was recently observed in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] (Collier, McKerracher and Banks-Smith JJ), the statutory constraints in Part 7AA do not relieve the Authority of the duty to consider:

(1)    all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136;

(2)    claims not expressly made, but which:

(a)    are the subject of substantial clearly articulated argument, relying on established facts: SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [75]-[82] (Griffiths J); or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55], [58]-[61], [68] (Black CJ, French and Selway JJ).

43    In accordance with Part 7AA, the Authority determined to treat as “new information” the information concerning the appellant’s brother, which had been provided in the submissions to the Authority with a claim that the Facebook page post in 2016 had come to the attention of the Sri Lankan authorities and was causing renewed interest in the appellant. It was sufficiently clear from the submission read with the “review material” that the appellant’s claim was that, prior to 2016, the Sri Lankan authorities had not drawn a connection between the desecrated body and the appellant, but now had.

44    The Authority’s written statement reveals that it did not consider the claim in fact made by the appellant for the reasons identified above. In accepting the “new information” and failing to deal with the claim associated with and clearly emerging from that “new information”, the Authority failed to conduct the “review” contemplated by Part 7AA.

45    It follows that the appeal must be allowed and the matter remitted to the Authority for determination according to law.

Ground 1 – Particulars 3, 4 and 5

46    Given the conclusion just reached, it is not necessary to address particulars three, four and five. Ground 1 succeeds irrespective of whether they are made out.

Grounds 2 to 5

47    Nor is it necessary to consider the remaining grounds:

(1)    Grounds two to four asserted jurisdictional error on the part of the Authority in failing to consider whether to exercise its power under s 473DC(3) to seek further information from the appellant in relation to the various inferences the Authority was said to have drawn. The inferences complained about were based on the assumption that the appellant’s claim involved the proposition, or necessarily required the conclusion, that the Facebook page provided proof of something the Sri Lankan authorities already knew, rather than constituting the drawing of an inference from primary findings of fact or agreed facts.

(2)    Ground five asserted error on the part of the Federal Circuit Court in failing to find jurisdictional error on the part of the Authority in “failing to find that there was a real risk of future harm as a result of the possibility that the publication of the brother’s details on the [Facebook] martyrs’ page in 2016 was the means by which the authorities first became aware of the brother’s membership in the LTTE”. That ground would only need to be dealt with if the Authority had in fact dealt with the claim as it should have been understood. It did not for the reasons given.

CONCLUSION

48    The appeal is allowed with costs to be paid as agreed or paid by way of a lump sum.

Associate:

Dated:    3 September 2018