FEDERAL COURT OF AUSTRALIA

DBR16 v Minister for Home Affairs [2019] FCA 101

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal fixed in the sum of $3,820.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    This is an appeal from orders of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the Authority) which had affirmed a decision of a delegate of the Minister to refuse to grant the appellant a temporary protection visa.

2    The appellant is a citizen of Sri Lanka who is of Tamil ethnicity. The appellant arrived in Australia on 17 September 2012. On 29 September 2015 the appellant lodged an application for a protection visa. On 1 August 2016, a delegate of the Minister refused the appellant’s application. Because that decision was a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act 1958 (Cth), the decision was referred to the Authority pursuant to s 473CA of the Act. On 26 September 2016, the Authority affirmed the decision not to grant the appellant a protection visa.

3    The appellant filed an application in the Federal Circuit Court dated 14 October 2016 seeking judicial review of the decision of the Authority in the exercise of the jurisdiction conferred on the Federal Circuit Court by s 476 of the Migration Act. On 10 May 2018, the Federal Circuit Court, after hearing the application, dismissed the proceeding.

Background

4    The foundation for the appellant’s application for a protection visa was that he believed that he was at risk of being harmed by the Sri Lankan Army (SLA) and the Sri Lankan Criminal Investigation Department (CID). The appellant claimed that he feared that the authorities would torture him if he returned to Sri Lanka.

5    The appellant stated in his application for a protection visa that in 1996 land belonging to his family in Sri Lanka of approximately 16 acres was forcibly taken by the SLA. The appellant stated that his share of the family land was approximately 3 acres. The appellant claimed that the SLA continued to occupy the family’s land on which it had set up a large camp. The appellant stated that in early August 2012 he spoke to one of the soldiers at the sentry point of the camp and requested that the army move from the area and hand the lands back. The appellant claimed that a commander then came to meet him and beat him with his hands and wooden poles. The appellant also gave accounts of officers of the CID attending his home on a few occasions in August 2012 in “white vans” in search of him, and that he had fled his home. The appellant claimed that because he believed that the CID would track him down, he decided to flee to Australia.

6    The appellant also claimed in his application that since arriving in Australia he had learned that CID officers had gone in search of him several times, and that they had threatened his son. The appellant claimed that his son was forced to flee Sri Lanka by plane to France after he had left Sri Lanka in August 2012. The appellant also claimed that his wife had informed him that the CID officers had asked her and her neighbours about his whereabouts regularly until sometime in 2014, and that the neighbours had told the CID that he had gone to Australia.

7    The appellant was interviewed twice for the purposes of his visa application because it was considered that there were difficulties with the interpreter at the first interview. The delegate formed the view that there were contradictions and inconsistencies in the information that the appellant had provided, and did not accept as credible the appellant’s statements regarding the Sri Lankan authorities’ continued adverse interest in him. The delegate also did not accept that the appellant’s family had been threatened, or that his son was forced to flee Sri Lanka as a consequence. The delegate was not satisfied that the appellant was a refugee as defined by s 5H(1) of the Migration Act, or a person in respect of whom Australia has protection obligations identified in s 36(2)(a) of the Act. Nor was the delegate satisfied for the purposes of s 36(2)(aa) and (2A) of the Act that there were substantial grounds for believing that the appellant would suffer significant harm should he be removed from Australia to Sri Lanka.

8    The appellant received assistance from a representative in relation to the referral of his application to the Authority. The appellant’s representative submitted to the Authority a five page written submission, attached to which were two pages that were described as “immigration documents from France”, and three documents that were described as “country information”.

9    Of the two pages described as “immigration documents from France”, the first page was an official-looking identification document written in French with a man’s photograph on it bearing the name of the person whom the appellant’s representative identified as his son, and showing the appellant’s and his wife’s name, and various dates. The second page was a copy of a card appearing to be a “smart card” titled “Vitale carte d’assurance maladie” bearing the same name, a card number, a date, and a man’s photograph. The “country information” comprised printouts of three articles from the Internet.

10    There are restrictions provided for in s 473DD of the Migration Act on the capacity of the Authority on its review to consider new information, including that the Authority must be satisfied that there are exceptional circumstances to justify considering the new information: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [22]-[34]. Relevantly for the purposes of this appeal, the Authority treated the “immigration documents from France” as new information, and determined that in their untranslated state the documents did not assist in determining whether there were any protection claims by the appellant’s son, and that they appeared only to confirm that he was in France. The Authority was therefore not satisfied that there were exceptional circumstances that justified considering that information.

11    In relation to the three documents submitted as “country information”, the Authority determined that it would not consider those items, and at the hearing of the appeal counsel for the appellant stated that he did not press that there was any error made by the Authority in relation to those documents (T3/32-39).

12    In relation to the five page submission the Authority stated that to the extent the submission discussed evidence, including country information, which was before the delegate and responded to the delegate’s decision based on that material, it did not constitute new information and the Authority had regard to it. Relevant to the grounds of appeal raised in this Court, the submission to the Authority raised the following issue –

ISSUE OF EMPLOYMENT/ AS A FARMER: The applicant in this matter was a farmer between 1992-2012 in Sri Lanka. He explained that he did farming for 6 months of the year and worked as a labourer at other times. In his own farm he grew chili, eggplant and a variety of beans. The applicant claims that the Army has denied his right to farm his own land and continued to occupy it illegally. The applicant explained to the delegate that whenever he made an attempt to retrieve his land he was harassed and tortured. When he was questioned by the delegate about the forms of torture, he stated that he was harassed, beaten and detained by the army. We submit that he had issues as a farmer with the SL Army which impacted on his employment and his life in Sri Lanka. This form of systematic land grabs and continued militarism mean Tamil farmers like the applicant continue to suffer. It basically threatens the applicant's capacity to subsist or otherwise constitutes serious harm. The delegate in this matter failed to consider the issue in her decision as to whether the applicant would return to Jaffna and resume his job as a farmer on his own land. We respectfully state that the deprivation of certain of the socio- economic rights, such as the ability to earn a living is tantamount to the deprivation of life or cruel, inhuman or degrading treatment, and will unquestionably constitute persecution. We respectfully submit that the delegate in this matter firstly, has failed to conduct an interview and raise this issue with the applicant during the protection visa interview. Secondly, the delegate had failed to consider this issue and make a finding as regards to this issue raised on the facts of the case. The applicant would have a legitimate expectation that the delegate would raise this issue in the interview and give evidence. The applicant states that he was denied procedural fairness. We state that the applicant clearly had issues with the Sri Lankan army as regards to occupation of the land by the army. The applicant informed the delegate that since he left the white van people have gone to his house and are looking for him. They have enquired about the whereabouts of the applicant. He mentioned that they have been several times and the last time the authorities went looking for him was in 2015. We further submit that with such a profile the applicant would be of interest to the SL authorities on return to Sri Lanka in the foreseeable future. His past records of disputes with the army commander, harassment, detention and ongoing occupation of his land by the SL Army may result in risk of serious harm or significant harm upon his return.

13    In its reasons for its decision, the Authority stated that there were changes, contrasts and inconsistencies in the appellant’s evidence, and that it did not consider the appellant to be a credible witness. In particular, while the Authority accepted that part of the appellant’s land was seized, the Authority rejected as fabrications the appellant’s claims that he approached the SLA camp to request the return of his land; that he was beaten by the commander of the SLA camp sometime in early August 2012; that the CID visited his house in August 2012; and that the CID subsequently visited his family seeking his whereabouts. The Authority was prepared to accept that the appellant’s son was in France, but did not accept the claim that the appellant’s son left Sri Lanka due to the CID looking for the appellant.

14    The Authority noted that the appellant was living in Jaffna and, despite the SLA seizing part of his land during the war, he was able to support himself and his family by working as a farmer and labourer until he left Sri Lanka.

15    Otherwise, the Authority found that there was not a real chance that the appellant would face serious harm upon his return to Sri Lanka either then, or in the foreseeable future, and was satisfied the appellant would not face a real chance of persecution from the Sri Lankan authorities due to any imputed political opinion on return to Sri Lanka now or in the reasonably foreseeable future.

The application to the Federal Circuit Court

16    Before the Federal Circuit Court the appellant was represented by counsel, who also appeared for the appellant before this Court. The appellant relied on five of his six grounds of review at the hearing before the Federal Circuit Court. Ground 4 was not pressed. Each ground on which the appellant relied was rejected by the primary judge.

17    As I will explain shortly, before this Court counsel for the appellant confined his case to two grounds of appeal which relate to two of the five grounds of review that were pressed before the primary judge.

18    Ground 1 before the Federal Circuit Court challenged the Authority’s decision not to consider the information supplied by the appellant’s representative to the Authority, and relevantly for the purposes of this appeal, the two pages of information that related to the appellant’s son whom the Authority accepted had travelled to France. In relation to those documents, the primary judge held at [25] that the Authority’s finding that there were not exceptional circumstances to justify considering the information that was both untranslated, and appeared to relate only to the identity of the appellant’s son, was open to it for the reasons that it gave.

19    Ground 6 before the Federal Circuit Court alleged that the Authority fell into jurisdictional error in failing to give consideration to the appellant’s claims regarding the appellant’s ability to subsist upon return from Australia and, alternatively, that the Authority had misconstrued or applied the wrong test under s 5J or s 91 R of the Migration Act. In rejecting ground 6 the primary judge held that the Authority found that despite the SLA seizing part of the appellant’s land, the appellant had been able to support himself and his family by working as a farmer and labourer until he left Sri Lanka. The primary judge also stated that the Authority had also referred to country information that indicated that there have been significant positive developments for Tamils in the country’s politics and the situation has generally improved.

The appeal to this Court

20    Before this court there were four grounds of appeal. Counsel for the appellant expressly abandoned grounds 3 and 4, and confined ground 1.

Ground 1

21    Ground 1 was cast in the following terms –

Ground 1

Her Honour fell into error in consideration of “exceptional circumstances” and construed it too narrowly and/ or misconstrued what constituted "exceptional circumstances". Her Honour should have found that the Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [2] - [5]). Her Honour should have found that the Authority failed to ask correct questions and / or asked incorrect questions and erred in the consideration of whether the submitted documents be considered and the issue of exceptional circumstances. Her Honour should have found that the Authority failed to consider s 473DD(a) simply conflating the sections.

Particulars

1.1    The Authority ignored the information.

1.2    The Authority failed to take into account the information.

1.3    The Authority failed to properly classify that the information was new information.

1.4    The Authority failed to consider and properly apply section s 473DD was applicable in the circumstances.

1.5    The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

1.6    There were exceptional circumstances which was ignored. Her Honour has failed to engage with and fully consider s 473DD and failed to set out the findings.

1. 7    Her Honour has erred in finding that the Authority has not committed jurisdictional error.

22    Section 473DD of the Migration Act is in the following terms –

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

23    The precondition set out in s 474DD(a) of the Act, namely that the Authority is satisfied that there are exceptional circumstances to justify considering the new information, must always be met before the Authority can consider any new information: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [29]. As to what are “exceptional circumstances”, Gageler, Keane and Nettle JJ stated –

[30]    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

(footnote omitted)

24    In this case, as I have recorded at [10] above, the Authority was not satisfied of the necessary condition that there were exceptional circumstances justifying consideration of the information.

25    What amounts to “new information” takes its content from s 474DC of the Act –

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.

26    In Plaintiff M174/2016, Gageler, Keane and Nettle JJ stated at [24] –

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

(footnote omitted)

27    As I stated earlier, counsel for the appellant confined ground 1 to the two documents in the French language relating to the appellant’s son. Counsel for the appellant made two alternative submissions in support of ground 1. First, the appellant submitted that the Authority had erred in treating these documents as “new information” for the purposes of s 473DD, and thereby excluding them from its consideration. Secondly, while the appellant’s written submissions suffered from a lack of clarity, the appellant appeared to maintain his challenge to the Authority’s consideration of whether exceptional circumstances existed in relation to the documents.

28    As to the first point, counsel for the appellant submitted that the two documents were not “new information” but information on claims already made and information already submitted. The Appellant had already claimed that the son had fled to France and the Authority fell into error in failing to consider the information as the subject matter was the same as was already before the delegate. The Appellant submitted that, to that extent, the information was not new information but corroborative information. In response, the Minister submitted that, having regard to the passage from Plaintiff 174/2016 which I have set out at [26] above, the documents constituted new factual material that was not before the Minister or the delegate at the time of the delegate’s decision.

29    Counsel for the appellant accepted during the course of argument at the hearing (T15/35-38) that the first point advanced under ground 1 was a new point that had not been put in argument to the primary judge. The Minister submitted that the Court should not grant leave to the appellant to rely on the new argument on the ground that it lacked merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588.

30    In relation to the first point, I refuse leave to the appellant to argue the point on appeal. I am not persuaded that the point has merit, and I heard no real explanation as to why the point had not been argued before the primary judge. As to the merit of the point, I am not persuaded by the appellant’s submission that the information in the documents was merely corroborative of other information, and to that extent was not new information. Facts or claims that the appellant sought to establish should not be confused with the information relied on to support them. The Authority stated in its reasons that the documents in their untranslated state did not assist in determining whether there were any protection claims by the appellant’s son, but that they appeared to confirm that the appellant’s son was in France. In my opinion, there was no error in the Authority treating the documents as containing new information.

31    The appellant’s arguments in support of the second point of ground 1 were as follows, taken from the written submissions –

23.    The Appellant had submitted documents in support of the claim concerning the son having fled to France. Part of the information was in untranslated form. The Tribunal very narrowly considered exceptional circumstances.

24.    The Tribunal could not have properly considered the document to reach the conclusion that it was not satisfied (IAA at [5]).

25.    The Appellant’s son being in France that directly had relevance to the protection claims. The fact the information was untranslated was not determinative whether there were exceptional circumstances.

26.    The Authority failed to consider the exceptional circumstances whether the section s 473DD was engaged.

27.    The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [2] – [5]); failed to ask correct questions and / or asked incorrect questions and irrational / illogical and / or denied procedural fairness and erred in the consideration of whether the submitted documents be considered and the issue of exceptional circumstances.

32    In addition, in oral argument counsel for the appellant submitted that the two documents contained personal and credible information that should have been considered by the Authority.

33    I have adverted to the Authority’s reasons for determining not to consider the documents at [10] and [30] above. The relevant passage from the Authority’s reasons is as follows –

5.    The applicant also provided two untranslated documents, described in the submission as immigration documents, in relation to the applicant's eldest son in France that was not before the delegate and is new information. The applicant submitted that the delegate failed to realistically consider why one of the applicant's sons had fled Sri Lanka and is currently seeking protection in France. He says he did not have an opportunity to explain and give evidence in regard to this matter and submits the information is credible personal information which was not previously known. The first document appears to be a card issued in the name of the applicant's eldest son that shows a card number, date and a photograph. The second document appears to be an identification document issued in the name of the applicant's eldest son and contains a photo and information including details of address, citizenship, parents' names (showing the applicant's and his wife's names) and various dates. In their untranslated state the documents do not assist in determining whether there are any protection claims by the son, they only appear to confirm that he is in France. I am not satisfied that there are exceptional circumstances that justify considering the information.

34    From this passage, it can be seen that the Authority acknowledged the appellant’s claim that the information in the documents was credible personal information, but concluded that the documents did not assist the appellant’s claim that his son had fled Sri Lanka and was seeking protection in France.

35    In considering whether exceptional circumstances exist for the purposes of determining whether s 473DD(a) is engaged, the Authority is to consider all the relevant circumstances in determining whether there are “exceptional circumstances”: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [104]. Further, the Authority’s consideration of both limbs of s 473DD(b) may inform the Authority’s satisfaction under s 473DD(a) as to whether there are “exceptional circumstances”: BBS16 at [102]. However, it is a misconception that the factors in s 473DD(b) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111. Further, whether particular factors will have a bearing on the decision will depend upon the particular case: AQU17 at [14].

36    In my view, for the purposes of the present case, s 473DD(a) has two elements: first, that there were exceptional circumstances; and second, that those exceptional circumstances justified the Authority considering the new information. The Authority’s reasons show that it considered that because the documents in their untranslated state did not assist in determining whether there were protection claims by the appellant’s son, but only that he was in France, the circumstances did not justify it considering the documents, and for that reason the necessary condition in s 473DD(a) was not engaged. I consider that there was no error in the Authority’s approach. Therefore, I reject the appellant’s submission that the Authority’s consideration of the statutory criterion was too narrow: cf, BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [47]. I also reject the appellant’s submission that the Authority could not have properly considered the documents: that inference is not supported by paragraph [5] of the Authority’s reasons, especially when considered in conjunction with the documents in question. I reject the appellant’s submission containing the implicit claim that the fact that the information was untranslated was determinative of whether there were exceptional circumstances: the Authority’s reasons at paragraph [5] do not support that submission either. Finally, I necessarily reject the high-level submission that “the Authority failed to consider the exceptional circumstances whether the section s 473DD was engaged”.

37    The appellant has not demonstrated any error in the primary judge’s conclusion that “the Authority’s finding that there were not exceptional circumstances to justify considering the information that was both untranslated and appeared to relate only to the identity of the son, was open to it for the reasons it gave”, or any other error submitted to be within ground 1 of the notice of appeal. Ground 1 therefore fails.

Ground 2

38    Ground 2 of the notice of appeal was as follows –

Ground 2

Her Honour should have found that the Authority fell into error by failing to assess the actual link between the Applicant's claim that Army (SLA) has taken the Applicant's land and retain possession of the land. The Authority's consideration of the Applicant's claims thereby resulted in jurisdictional error.

Particulars

2.1    The Authority ignored the claims regarding the continued holding of the Applicant's land.

2.2    The Authority consideration is illogical/ irrational were the Applicant to demand the return of his land and whether the Applicant was at risk because of the link to his land.

2.3    The Authority failed to consider whether the Applicant was at risk because of the link to his land.

2.4    The Authority committed jurisdictional error.

39    Whilst this ground of appeal appears to be fairly broad, the submissions made in support of it were a little more focussed. At the hearing, counsel for the appellant stated that he adopted his written submissions. Counsel pointed to the fact that the appellant’s farming background had been raised on behalf of the appellant by his representative’s written submission to the Authority. I have set out the relevant passage of that submission under paragraph [12] above. The appellant’s written submissions in support of ground 2 in this Court were somewhat repetitive –

29.    The Appellant submits that Her Honour should have found that the IAA fell into jurisdictional error in failing to fully engage with the Appellant’s return to Sri Lanka:DBR16 & Anor v MIBP & Anor [2018] FCCA 1181 at [34] – [38].

30.    The IAA found that SLA continues to occupy the Appellant’s land (CB 287; IAA at [36]). The Authority fell into error by failing to assess the actual link between the Appellant’s claim that Army (SLA) has taken the Appellant’s land and retain possession of the land.

31.    The Authority’s findings are premised on the findings that the Appellant can return to Sri Lanka. The Authority has not engaged realistically with the Appellant’s claim including the claim that he would be returning as a farmer.

32.    It is submitted that the Appellant cannot return to Sri Lanka and commence his employment. He is at risk of his livelihood and the Tribunal has not engaged with the claim.

33.    The Authority’s consideration is on the basis that the Appellant can seek redress via the Courts: (CB 288 at [36] – [38]). The Authority does not engage with the risk to the Appellant it has been specifically been claimed that the Appellant’s background is farming.

34.    The Authority has not considered these risks to the Appellant. The Tribunal has not given consideration as to what would occur to the Appellant in the interim even if the Appellant proceeded to claim the land. The Authority ignored the claims regarding the continued holding of the Appellant’s land. The Authority failed to consider whether the Appellant was at risk because of the link to his land.

35.    The Appellant had claimed that his livelihood was affected by the continued occupation of the land (CB 262 – 263). This Authority has not addressed this claim. It has dealt with whether the Appellant would be able to seek relief.

36.    The Appellant submits that the Authority’s failure to realistically consider his ability to return to his former occupation or any occupation at all.

37.    The Authority failed to realistically engage with the ability of the Appellant to return and subsist in any occupation.

38.    The Authority was aware that the Appellant was claiming the he suffered mentally (CB 260). The Authority has not given any consideration to the ability of the Appellant to enter into meaningful employment.

39.    In all circumstances, the Appellant would be returned to a country where the Appellant was moving away in much deteriorated state of mind.

40.    The Authority erred in consideration of the Appellant’s ability to subsist (IAA at [36] – [38]).

41.    The Authority has not engaged realistically to the circumstances of the Appellant who has suffered loss of his 4 children and other trauma and whether in the circumstances to return the Appellant to Sri Lanka there would be refoulement of Australia’s obligation under the Convention.

42.    The Authority failed to engage with the Appellant’s ability to subsist given that the Appellant had difficulties and suffered extortion (at [36]), the Appellant’s mental state and other considerations.

43.    The Authority fell into jurisdictional error in failing to give consideration to the Appellant’s claims regarding the Appellant’s ability to subsist upon return from Australia.

44.    The Authority did not give consideration to the Appellant’s ability to return to any occupation or his former occupation to subsist in Sri Lanka as he would be denied rights to subsistence in the circumstances that the Appellant who was a farmer had his land taken away by SLA.

45.    The Appellant submits that the Tribunal failed to deal with the claim that the Appellant would be able to subsist in Sri Lanka owing to the deprivation of his land. Alternatively, the Authority misconstrued and/ or applied wrong test under s 5J of the Act and / or s 91R of the Act.

46.    The Authority consideration is illogical/ irrational were the Appellant to demand the return of his land and whether the Appellant was at risk because of the link to his land.

47.    Her Honour has not engaged with this ground of application. Her Honour should have found the Authority’s consideration of the Appellant’s claims thereby resulted in jurisdictional error.

40    In considering ground 2, it is necessary to have regard to the elements of the submission that was advanced by the appellant’s representative supporting his claim, which I have set out under paragraph [12] above. Those elements included that –

(a)    whenever the appellant made an attempt to retrieve his own land, he was harassed and tortured, including by being beaten and detained by the army;

(b)    since the appellant left Sri Lanka the “white van people” have gone to his house and are looking for him;

(c)    with such a profile the appellant would be of interest to the Sri Lankan authorities on return to Sri Lanka in the foreseeable future;

(d)    the appellant’s past records of disputes with the army commander, harassment, detention and ongoing occupation of his land by the SLA may result in risk of serious harm or significant harm upon his return.

41    The Authority rejected these elements of the appellant’s claims. As I have indicated at [13] above, the Authority did not consider the appellant to be a credible witness, and while the Authority accepted that part of the appellant’s land was seized, the Authority rejected as fabrications other claims such as beatings by the army commander, and the appellant’s claims that the CID visited his house and were seeking his whereabouts. And contrary to the appellant’s submission concerning his ability to sustain himself and his family, the Authority noted that, despite the SLA seizing part of his land during the war, he was able to support himself and his family by working as a farmer and labourer. The Authority also found that, based on the current Sri Lankan government returning some land held by the military and the availability of legal avenues to challenge seized land, that the chance that the appellant would experience any harm for asking for his land back now or in the reasonably foreseeable future, to be remote. Furthermore, as I have noted at [15] above, the Authority found that there was not a real chance that the appellant would face serious harm upon his return to Sri Lanka either then, or in the foreseeable future, and was satisfied the appellant would not face a real chance of persecution from the Sri Lankan authorities due to any imputed political opinion on return to Sri Lanka now or in the reasonably foreseeable future.

42    Having regard to these findings by the Authority, I reject the appellant’s submissions that the Authority did not consider his claim that he could not return to Sri Lanka to return to his former occupation, or any occupation, or otherwise subsist whether owing to the deprivation of his land, or otherwise. The Authority addressed the factual premises of the appellant’s claims and rejected them: see, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].

43    The primary judge reached much the same conclusions at [44] of her Honour’s reasons –

[44]    … the Authority found that despite the SLA seizing part of the applicant’s land, the applicant had been able to support himself and his family by working as a farmer and labourer until he left Sri Lanka. The Authority also referred to country information that indicated that there have been significant positive developments for Tamils in the country’s politics and the situation has generally improved.

44    Finally, to the extent that the appellant submitted that the Authority failed to consider the appellant’s mental state as being relevant to his ability to subsist upon his return from Australia, the submissions as to the appellant’s mental state were advanced to the Authority as an explanation for confusion in the appellant’s accounts to the Department, and for the inconsistencies and oversights in his evidence. The primary judge dealt with this ground of review at [45] and [46] of her honour’s reasons –

[45]    Ground 6 also asserts that the applicant had mental health issues and the Authority failed to give any consideration to the ability of the applicant “to enter into meaningful employment”. However, a fair reading of the Authority’s decision record and the applicant’s migration agent’s submissions do not disclose such a claim. I accept the submission of the first respondent that the migration agent’s submission in relation to the mental health issues of the applicant were part of a submission seeking to explain concerns the Authority expressed with regard to the applicant’s evidence.

[46]    Moreover, the mental health issues were not supported by any medical evidence or otherwise advanced before the Authority as part of his claims.

45    The appellant has not established that there was any error in the primary judge’s rejection of this element of his grounds for review.

46    Ground 2 therefore fails.

Conclusion

47    The appeal will be dismissed. In the event that the appeal was dismissed the Minister sought an order for costs fixed in the sum of $3,820. Counsel for the appellant did not contest that sum, and I will make that order.

Associate:

Dated:    12 February 2019