FEDERAL COURT OF AUSTRALIA

BWT16 v Minister for Immigration and Border Protection [2019] FCA 404

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

1.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

2.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the IAA or the Authority) affirming a decision of a delegate of the first respondent (the Minister) to refuse the appellant’s application for a Safe Haven Enterprise visa (SHEV).

2    The appellant raises four grounds of appeal. These may be summarised as follows:

(a)    By the first two grounds, which may be conveniently dealt with together, the appellant contends that the primary judge erred in not concluding that the IAA fell into jurisdictional error by failing to consider certain letters that had been provided by or on behalf of the appellant to the delegate. In particular, the appellant relies on the fact that the IAA did not refer in its reasons to two letters from Emmanuel Caius Feldano, an attorney (the Feldano letters). In essence, the appellant contends that the IAA failed to have regard to important evidence that was corroborative of his case.

(b)    The appellant’s third ground of appeal is to the effect that the primary judge erred by not finding that the IAA acted unreasonably by failing to consider whether to exercise the power under s 473DC of the Migration Act 1958 (Cth) to get new information. Specifically, it is contended that the IAA should have considered whether to invite the appellant to give new information at an interview.

(c)    The fourth ground of appeal is to the effect that the primary judge erred by not finding that the IAA failed to carry out its statutory task in that it failed to consider the risk of abductions and kidnapping under the complementary protection criterion. The appellant contends that, while the IAA considered the risk of abductions and kidnapping in the context of the refugee assessment, it failed to do so in connection with complementary protection.

3    For the reasons that follow, none of these grounds of appeal is made out. It follows that the appeal is to be dismissed.

Background facts

4    The following summary of the background facts is substantially based on the reasons for judgment of the primary judge (the Reasons).

5    The appellant departed Sri Lanka on 11 August 2012 and arrived in Australia on 1 September 2012 by boat and without a visa. He was therefore an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.

6    On 16 January 2013, while at the Scherger Immigration Detention Centre, the appellant attended an interview with an officer of the Department (the entry interview). The appellant was assisted during the course of this interview by an interpreter fluent in the Tamil and English languages. On 6 August 2013, the appellant submitted a purported application for a protection (Class XA) visa. This application was found to be invalid. The appellant was invited by the Department of Immigration and Border Protection (the Department) to apply for either a temporary protection (subclass 785) visa (TPV) or a SHEV.

7    The Minister ‘lifted the bar’ (see s 46A of the Migration Act) on 13 August 2015, and on 15 September 2015, the appellant applied for a SHEV. Included in the application was a statutory declaration in which the appellant set out the bases on which he claimed to be entitled to the visa. In summary, the appellant claimed:

(a)    he was born on 10 June 1981 in Jaffna in the northern province of Sri Lanka. He claimed to be an ethnic Tamil of the Catholic faith;

(b)    in 1996, the appellant’s family moved from Vanni to Mannar and did not return to Vanni, in defiance of a command made by the Liberation Tigers of Tamil Eelam (LTTE). The LTTE pressured the appellant to join them, but the appellant refused. He did, however, agree to help smuggle goods to the LTTE from Mannar, though the appellant said he had no choice but to agree;

(c)    the appellant was required to bribe the Sri Lankan Army (the army) in consequence of his smuggling activities. The appellant feared harm and fled to India in August 1999;

(d)    in 2001 the appellant’s father was either murdered by the army or committed suicide. The appellant and his family suspected that he had been murdered. His father was found hanging and the family dog was found killed nearby. There was a judicial investigation into the death, but no conclusion was reached;

(e)    the appellant returned from India to Sri Lanka in February 2001 following his father’s death. He was arrested by the Sri Lankan Navy (the navy) who intercepted the boat on which he was travelling. He was tortured by the navy, who accused him of being a member of the LTTE. He was detained in custody for approximately four months as a consequence of drugs being found on the boat on which he was travelling. The appellant claims not to have known of the existence of the drugs. He was released without charge in June 2001, though he was required to report regularly while the case was ongoing. The case was eventually dismissed after three and a half years. The appellant was found not to have been a part of any drug cartel;

(f)    after his release, the appellant was forced to help the LTTE. He did this from 2006 to 2009 by smuggling goods and providing mobile phones to the LTTE. He claimed to have purchased at least 50 to 60 phones. He claimed to also have been required to carry messages between the LTTE and people residing in Mannar from 2002 until 2009. The army found one of the phones provided by the appellant to the LTTE and traced it to the appellant;

(g)    the appellant was detained on 11 March 2012, whereupon he was interrogated and received beatings to his head for several hours. His family paid a ransom of five lakhs for his release;

(h)    the Criminal Investigation Division (CID) began extorting money from the appellant. After initially paying the extortion money, the appellant ceased. The CID threatened to kill him in reprisal, and the appellant thereafter went into hiding; and

(i)    by reason of these matters, the appellant feared harm on the basis of his ethnicity and imputed support of the LTTE. The appellant claimed to fear such harm from the navy, the army, the CID and other police. The appellant also claimed to fear significant harm on the basis of having left Sri Lanka illegally and from being a failed asylum seeker.

8    The appellant provided the Department with a number of documents in support of his visa application. These included:

(a)    a letter from Mr Niladhari dated 2 September 2004 (Niladhari letter);

(b)    a letter from the Family Rehabilitation Centre dated 30 August 2005 (family rehabilitation letter);

(c)    a letter from Mr Manuel Croos dated 25 August 2005 (Croos letter);

(d)    a letter from Mr Adaikalanathan MP dated 21 December 2004 (Adaikalanathan letter);

(e)    a letter from the Mannar Clinic Maternity & Nursing Hospital dated 23 August 2005 (Mannar Clinic letter); and

(f)    the Feldano letters.

9    At [23] of the Reasons, the primary judge provided the following description of the first five letters referred to in the preceding paragraph:

(a)    The Niladhari letter principally dealt with the appellant’s arrest in 2001. It stated that: “Although he was released, the Police suspect him”. The letter is dated 2 September 2004, but it does not otherwise provide any information regarding how or why the police might have suspected the appellant in 2004.

(b)    The family rehabilitation letter attested to the fact that the appellant had: “… medical problems due to torture”.

(c)    The Croos letter provided that the appellant was arrested by the navy in 2001 and that he was investigated for three years. No other substantive claims were made.

(d)    The Adaikalanathan letter stated that the appellant was arrested and tortured in 2001 and that, after his release “… the forces were after him”. The letter went on to state that the appellant was visited and harassed frequently by the police and that this “… worsened with the Hero’s Day celebration on the 27th of November 2004”.

(e)    The Mannar clinic letter stated that the appellant was admitted to the clinic in 2001 with injuries due to his assault by the security forces. He was “[t]reated for confusion and Depresive [sic] illness”. It also states that he suffered a “[l]oss [of] appetite, loss of sleep, and palpitation after the assault by the security forces”.

10    The Feldano letters appeared at pages 131-132 and 269 of the Court Book below. (They appear at the same pages of the Appeal Book.) While the letter appearing at page 269 clearly bears the date “07.01.2013”, the date on the other letter is less clear. The primary judge found that it was also dated “07.01.2013”. At the hearing of the appeal, counsel for the appellant contended that it was in fact dated “07.01.2012”, that is, one year earlier than the other letter. It does not appear that any such contention was raised below. While the date is not altogether clear, I will proceed on the basis that the letter at pages 131-132 is dated “07.01.2013”, that is, the same date as the other letter.

11    Both letters are on the letterhead of Mr Feldano and both are addressed “To whom it may concern”. The text of the letter at pages 131-132 (to the extent legible) is set out below. (The ellipses in the text below indicate portions of the letter that are illegible.)

This is to certify that [the appellant] of [address details omitted] and holder of National Identity Card NO: [details omitted] is a person who is known to me for a considerable length of time.

He hails from a Tamil speaking Roman Catholic Family, having lost his father during his childhood on account of security violence.

He had on … Telephone for the use of the L.T.T.E. and has … handed over same to them. This action of his had been due to the L.T.T.E. and as the said telephone had been registered in his name, the Terrorist Investigation Department (T.I.D) had on recovery of the said Telephone from L.T.T.E controlled places had traced his name and had subjected him to security arrest and detention.

Later on the intervention of his mother [name omitted] who had pleaded with them he had been released on payment of a big ransom.

As a follow up the process of investigation continued repeatedly and his family members too were under constant surveillance and interrogation.

Also as a consequence of his mental trauma that followed frequent questioning by security men this young man resorted to the use of drugs as well.

And subsequently sensing danger ahead, he had decided to leave this country and I am reliably informed that he is presently in Australia and is seeking refugee status.

From my personal knowledge can vouch that his departure from Sri Lanka was not due to any pecuniary motive or otherwise but solely due to the fear of danger to his Limb and life alone.

Taking into consideration … wherein the basic … recommend that his application be considered favourably.

12    The text of the letter at page 269 of the Court Book was as follows:

This is to certify that [the appellant] of [address details omitted] and holder of National Identity Card No: [details omitted] is a person who is known to me for a considerable period.

He hails from a Tamil speaking Roman Catholic family.

On or about 11.03.2012 he was taken to custody by the Terrorist Investigations Department (T.I.D) of the Mannar Police on an allegation that he was suspected of having links with the L.T.T.E.

In the course of the inquiry he was countered of having secret connection with a particular Number, which telephone was claimed to be one that belonged to the L.T.T.E. and to be more specific the number indicated was [details omitted].

He was detained at the Police station for a full day and was later released on condition that he was to report at the police station as and when required.

As a follow up, this process continued repeatedly and his family members too were being harassed by such conduct of the security men.

This frightened this young man and sensing danger ahead he had decided to leave this country and I am reliably informed that he is presently in Australia and is seeking refugee status in that noble country.

Taking into consideration, the Political situation in this country wherein the basic Democratic principles are being violated, and the independence of the judiciary is being challenged by the Executive I very strongly recommend that his application be considered favourably.

13    The Department, by correspondence of 21 September 2015, acknowledged receipt of the appellant’s application for the SHEV. By correspondence of 24 November 2015, the Department invited the appellant to attend an interview to discuss his visa application and his claims that he was a person in respect of whom Australia had protection obligations.

14    On 8 December 2015, the appellant attended an interview with a delegate of the Minister. As set out at [9] of the delegate’s decision (referred to below), during the interview on 8 December 2015, the appellant made relevant additions to his written claims, as follows:

(a)    though the appellant agreed to help the LTTE in the past because he feared harm from the LTTE, the appellant no longer feared harm from the LTTE;

(b)    the appellant would be harmed because he was a Tamil, and his Tamil ethnicity also increased the chance he would be harmed for the other reasons claimed; and

(c)    the appellant feared harm for his imputed political opinion and his race but did not fear harm for membership of any particular social group. The appellant said instead that being a Tamil and being from the north of Sri Lanka would increase the chance he would be imputed with a political opinion in favour of the LTTE.

15    On 18 December 2015, the delegate sent the appellant’s migration agent an email in which some inconsistencies were identified in the appellant’s claims. The delegate identified the two most important concerns as the following:

Letters provided by your client suggest his father committed suicide after being defrauded. This contradicts the applicant’s claim that his father was murdered by security forces.

The applicant made a number of claims relating to his arrest in March 2012, and the events that followed. There were significant discrepancies between the applicant’s written account, and his evidence at interview.

16    The delegate noted that these concerns were “not an exhaustive list”.

17    On 2 June 2016, the delegate refused to grant the visa. In the course of the delegate’s decision, it was stated at [39]:

The applicant has provided letters in support of his claim that he is suspected of involvement with the LTTE. A matter regarding the letters provided in support of the application has some significance. A letter authored by Emmanuel Caius Feldano on 7 January 2013 was submitted with the application. Another letter also authored by Emmanuel Caius Feldano on 7 January 2013 was submitted after the application (submission of 1 October 2015). Both letters have identical opening paragraphs before the text of each differs from the third paragraph, but both support the applicant’s claim to have been arrested in 2012. The version submitted after the application however describes the applicant abusing illicit drugs. I asked the applicant why he had provided two different letters written on the same day by the same author. At first he said he did not know why the letters were different, and then said he asked his mother on two separate occasions to get letters of support for the applicant’s application, and that each letter must have been provided on a separate occasion. This does not explain why the author would produce a second letter largely similar to the first, or why he would date the second letter to match the first. I do not place great weight on this, but nor does it enhance the credibility of the letters.

18    On 8 June 2016, the matter was referred to the IAA. By correspondence dated 8 June 2016, the appellant was advised of the referral. The appellant was advised, relevantly, as follows:

The decision of the Minister for Immigration and Border Protection to refuse you a protection visa has been referred to the Immigration Assessment Authority (the IAA) for a review. This matter was referred to the IAA on 8 June 2016.

The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

19    The appellant’s migration agent provided submissions to the IAA on the appellant’s behalf on 27 June 2016.

20    On 12 July 2016, the IAA affirmed the delegate’s decision. The IAA set out the information before it at [3] and [4] of its decision and reasons:

3.    I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

4.    On 27 June 2016 the IAA received a submission from the applicant providing reasons he disagreed with the delegate’s decision and inferring that aspects of his claims including his psychological condition had been overlooked. The submission also referred to information from the most recent DFAT report, which the delegate considered. To the extent that the submission contains arguments responding to the delegate’s decision, reasserts claims and references country information that was before the delegate, I am satisfied that this does not constitute new information as defined in s.473DC(1) of the Act. I have had regard to this information.

21    The IAA accepted:

(a)    that the appellant was a Tamil citizen of Sri Lanka and that Sri Lanka was his receiving country for the purpose of the assessment;

(b)    that the appellant assisted the LTTE between 1998 and 1999, but did not accept that the LTTE tortured the appellant or that the Sri Lankan authorities were aware of the appellant’s LTTE activities prior to his departure;

(c)    certain claims in respect of the appellant’s arrest in 2001 and his father’s death as set out at [17]-[22] of its decision; and

(d)    that the appellant’s father died in tragic circumstances, but noted that there were no ongoing negative repercussions for the appellant as a result of the death of his father or the investigation that followed.

22    As to the psychological state of the appellant after his release from prison in 2001, the IAA made findings at [23]-[24] of its decision.

23    The IAA did not accept that the appellant assisted the LTTE upon his return to Sri Lanka or that he was arrested in relation to that assistance. The IAA found, relevantly, as follows:

28.    The applicant has consistently stated he assisted the LTTE by giving them a mobile phone which he purchased in his name, that the phone was found and traced to him, that he was arrested in March 2012 and that his release was secured through a bribe. At the SHEV interview he stated that from about 2006-2009, he again smuggled goods, including many (at least 50-60) mobile phones. He stated they required monthly payments. He also stated he purchased two phones in his own name – one he kept and the other he gave to the LTTE so they could communicate.

29.    In his written application he stated one of the phones was left by [sic] on the battlefield by an LTTE member and the Army found the phone and traced its purchase back to him. He stated he was arrested, detained and interrogated by the Army about this on 11 March 2012. He stated they showed him the phone records and sought answers. However, at the SHEV interview, he stated he had had problems with the police in 2009 and referred to his arrest in relation to the phone as an example of those problems. He stated that the security forces arrested him and asked him why he thought they arrested him. He admitted to them straightaway that he had bought phones for the LTTE. He confirmed to the delegate that the only evidence the police had was evidence he gave them. The delegate put to the applicant that in his written application he stated the security forces had found the phone and traced it back to him. The applicant responded that the police did not tell him anything directly, but they told the boy that negotiated on his behalf that they had found the phones somewhere. I consider it implausible that the authorities would not tell the applicant this directly when he was detained four-five hours, beaten and interrogated, but they would tell a boy who was negotiating his release.

…

31.    The delegate asked the applicant why, if the authorities found the phone in 2009, he was not arrested until 2012. The applicant responded that maybe that was the time they found out. He stated that at that same time they also arrested many other people who helped the LTTE with phones. However, I find this explanation to be inconsistent with his claim that the phone was dropped on the battlefield and found when the Army cleared the area after the war. I also find this inconsistent with his statement that he had problems in 2009 and was arrested.

…

34.    I do not accept the applicant would have been released in 2012 if he was of concern to the authorities for having LTTE links. DFAT assesses that since the end of the war, many thousands of LTTE members who were employed in administrative roles or provided other types of high level military support to the LTTE were arrested and detained in rehabilitation centres and have since been released. In addition to high profile members any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and subject to detention and rehabilitation centres. The applicant resided in the LTTE controlled and Army controlled areas in the Northern Province during and in the aftermath of the war, had previously been interrogated by the Navy about being a Sea Tiger after returning from India, was previously arrested and imprisoned for criminal activity, and had given the authorities an admission and documentary evidence that he had recently worked for the LTTE by supplying these phones. I am not satisfied that the Applicant would have been released by the authorities on this occasion without any conditions, warning or formal arrest and without being sent to a rehabilitation camp regardless of any bribe, particularly, when on the applicant’s own evidence, they were targeting and arresting the people who had helped the LTTE with mobile phones.

35.    While I accept that a person’s psychological condition may explain some trouble recalling specific details or incoherent sequencing in events, I am not satisfied that this explains the issues in the applicant’s evidence in relation to his post-2001 claims. I have taken the applicant’s condition into account however given the various inconsistencies in the applicant’s statement and the implausible nature of certain claims discussed above, I am not satisfied that the applicant re-commenced his work for the LTTE and provided them with support from 2001-2009. Given the above discussion around his interrogation and release, I am not satisfied that the applicant was arrested in relation to the mobile phones or his support for the LTTE. I am satisfied that the authorities did not have an interest in the applicant on the basis of any suspected LTTE links.

(Footnotes omitted.)

24    Due to inconsistencies in the appellant’s claims, the IAA did not accept that, after the appellant’s return to Sri Lanka in 2009, he was extorted for money by a CID officer or lived in hiding at any time up to his departure from Sri Lanka. Nor did the IAA accept that the appellant was harassed or required to report for questioning or was otherwise of interest to any branch of the military police or other authorities.

25    The IAA found that the appellant did not face a real chance of harm due to his Tamil race or imputed LTTE support. The IAA found that the appellant would not be harmed for being a failed asylum seeker who departed the country illegally. The IAA found that the appellant was not a refugee and did not meet the requirements of the complementary protection criterion under s 36(2)(aa) of the Migration Act.

26    In making various findings, the IAA had regard to relevant country information, including the Department of Foreign Affairs and Trade (DFAT), “Country Information Report Sri Lanka” of 18 December 2015; the UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” of 21 December 2012; and the US Department of State, “Human Rights Report 2014 Sri Lanka” of 25 June 2015.

27    At [45] of its decision, the IAA found as follows:

There is some suggestion that abductions and kidnappings of Tamils is still occurring. However, as noted above, DFAT assesses that since the war’s end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably. DFAT reports that no particular group has been the target of kidnapping attacks and they do not appear to be ethnically-based. I do not accept that the applicant faces a real chance of being kidnapped or abducted by paramilitaries, authorities or others for reasons of his Tamil ethnicity.

(Footnote omitted.)

28    Under the heading “Complementary protection assessment”, the IAA stated at [68]-[69]:

68.    The applicant has previously received mental health counselling/treatment in Sri Lanka and has worked various jobs including in a factory and running a small business/shop in Sri Lanka. I am not satisfied that the applicant will not be able to attain employment or access to basic services in Sri Lanka on account of his race, gender or origin. Having regard to country information cited above which indicates that Tamils including young Tamil males are no longer at risk of harm on account of race, even when originating from the North, I am not satisfied the applicant faces a real risk of significant harm in the reasonably foreseeable future for reasons of his race, gender or origins.

69.    I found above that although the applicant was detained, interrogated and tortured by authorities under suspicion of LTTE connections when he returned from India in 2001, it was not for reasons of his previous LTTE activity. I accepted his six month imprisonment was in relation to drug offences. I found that after he was released without conviction in 2001, he did not work for the LTTE again, was not subsequently arrested, interrogated and detained in relation to LTTE activity or support, and was not extorted or harassed by any other members of authorities. I found the applicant was not of interest to any authorities on account of any previous LTTE activities or that he was otherwise suspected of LTTE support or other links when he departed Sri Lanka. I do not accept that he would face a real chance of harm in relation to these matters upon return, and for the same reason I also find there is not a real risk he will suffer significant harm.

The proceeding in the Federal Circuit Court

29    The appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision. The appellant was legally represented in the proceeding in the Federal Circuit Court. By his amended application, the appellant raised six grounds of review. However, at the hearing of the matter, the appellant did not press ground 4. For present purposes, it is sufficient to refer to grounds 1, 2 and 5 of the appellant’s amended application in the Federal Circuit Court. These grounds (omitting particulars) were as follows:

(a)    Ground 1: The IAA failed to ‘review’ the applicant’s case when it failed to consider the letters, which the applicant provided, and the supportive information contained within those letters.

(b)    Ground 2: The IAA failed to exercise the discretion to seek new information at interview in a manner which was legally reasonable.

(c)    Ground 5: The IAA failed to consider an ‘integer’ of the applicant’s case in relation to complementary protection that he may be the victim of kidnapping.

30    The hearing before the primary judge took place on 16 April 2018. The primary judge delivered reasons for judgment on 13 July 2018.

31    The primary judge dealt with ground 1 at [23]-[31] of the Reasons. In relation to the first five letters (see [9] above), the primary judge considered that it was not necessary for the IAA to refer to the letters (beyond the reference in [18] of the IAA decision). After outlining the appellant’s submissions, the primary judge stated at [26]-[27]:

26.    The Authority, however, accepted that the Applicant was arrested in 2001 and tortured by the Sri Lankan Navy. The Authority also accepted that there were court proceedings in 2001 and that the Applicant was imprisoned for alleged drug smuggling offences. The Authority referred specifically at paragraph 18 of the Decision Record … to the fact that “the applicant has provided various letters of support.”

27.    There was, as submitted by the Minister, therefore, no need for the Authority to otherwise refer to or rely upon the Niladhari letter, the family rehabilitation letter, the Croos letter, the Adaikalanathan letter, or the Mannar clinic letter, because those letters did not refer to any matter beyond what the Authority accepted. To the extent that the Niladhari letter suggested in 2004 that the police still suspected the Applicant, that may be readily read as being a reference to the drug smuggling case against the Applicant, which was ongoing at the time of the letter. These letters were as submitted by the First Respondent, otherwise insubstantial or inconsequential.

32    In relation to the Feldano letters, the Minister conceded that they were not expressly referred to by the IAA (Reasons, [28]). The primary judge found that they were not required to be expressly mentioned. Her Honour’s reasons were as follows:

29.    It was clear that the Authority had in its possession, and had canvassed, the decision of the delegate. It is clear the Authority had read and considered the delegate’s decision, and the delegate had, in its decision, accurately summarised the Feldano letters as supporting the Applicant’s claim to have been arrested in 2012. Paragraph 39 of the delegate’s decision is set out in the evidence as contained in the Court Book at page 314, which is in evidence in the proceedings. Paragraph 39 is as follows …

30.    The Court finds, as submitted by the First Respondent, that the letters themselves were not of critical significance, to the Applicant’s claims and, even were that to be wrong, any significance they did hold was diminished as a consequence of the inconsistencies between the two versions as identified by the delegate. The Feldano letters were merely corroborative of the claims made by the Applicant in his statement attached to the visa application, which the Authority clearly considered. The Authority referred to the Applicant’s alleged arrest in 2012, and the surrounding circumstances, including the Applicant’s claim that the army tracked him down by tracing a mobile phone he had allegedly supplied to the LTTE.

31.    There was no obligation on the Authority to expressly consider the letters in its Decision Record. It is clear that the Authority gave the necessary consideration required to the letters. Ground 1 shall be dismissed.

(Footnote omitted.)

33    In relation to ground 2, the primary judge outlined the appellant’s submissions at [32]-[33]. In summary, the appellant claimed that, at his interview with the delegate, he was not afforded a proper opportunity to put relevant matters as to two topics raised by the delegate. The appellant also submitted that the IAA went outside the parameters of the delegate’s interview, making new factual findings. Some of those findings related to new country information; some to the charge of implausibility; and some to issues not covered by the delegate’s decision. In essence, the appellant claimed that the IAA traversed into territory not canvassed by the delegate.

34    The primary judge held that this ground could not succeed. After referring to DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (DGZ16) at [72], the primary judge stated:

36.    The Authority did not consider any new “points” or matters that were not the subject of the delegate’s decision. Indeed, the Applicant was asked, in his interview with the delegate, whether he had “put forward all your claims for protection”. The Applicant answered yes. The Applicant has not stated how it was he was not given an opportunity to state his case. He provided written submissions to both the delegate and the Authority after the delegate’s hearing. He attended an interview with the delegate. He was given opportunities to state his case.

37.    In any event, as submitted by the First Respondent, this ground misconceives the operation of s.473DB(1) of the Act, which provides that the Authority must review a fast track reviewable decision without interviewing an Applicant, subject to limited exceptions. Critically, no exception is made in Part 7AA of the Authority to interview an applicant on the basis of a claim that they did not get the opportunity to fully state their case before the delegate.

35    In relation to ground 5, the primary judge noted, at [41], that the appellant claimed that the IAA committed a jurisdictional error by failing to consider the prospect of him being kidnapped in the context of the complementary protection criterion. The primary judge stated that this was not a claim made by the appellant before the IAA; rather, it arose in the context of the IAA’s consideration of country information and, in particular, that provided by DFAT.

36    After setting out [68]-[69] of the IAA’s decision, the primary judge reasoned as follows (at [45]):

The Authority’s findings above are to be read together with the Authority’s earlier findings on the question of harm the Applicant may face by reason of his imputed LTTE support, which included by reason of his race as a Tamil. As submitted by the First Respondent, it was not necessary for the Authority to, again, consider each integer of the Applicant’s claims and then to repeat its findings …

37    Accordingly, the primary judge dismissed ground 5.

The appeal to this Court

38    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant was given leave at the hearing to rely on an amended notice of appeal. (The document was filed on 19 October 2018 and is headed “notice of appeal”.) The amended notice of appeal raised the following four grounds:

1.    The Honourable Federal Circuit Court Judge took into account an irrelevant consideration and otherwise erred by failing to find that the IAA had failed to exercise its review function – namely to have regard to letters advanced by the Applicant as part of his case – by engaging in an impermissible review on the merits of the decision at paragraph [30] of the decision.

2.    The Honourable Federal Circuit Court Judge took into account an irrelevant consideration and otherwise erred by failing to find the IAA had failed to have regard to exercise its review function – namely to have regard to what is referred to in the decision as the Feldano letters at pages 131 and 269 of the Appeal Book – by holding that the delegate had considered the letters and that the Assessor had considered the delegate’s decision at paragraph [29]-[31] of the decision.

3.    The Honourable Federal Circuit Court Judge erred by failing to find that the IAA had acted unreasonably by failing to consider whether to exercise the powers under section 473DC and otherwise failed to apply the authority of [Minister for Immigration and Border Protection v] CRY16 [2017] FCAFC 210.

4.    The Honourable Federal Circuit Court Judge erred by misdirecting itself as to the Applicant’s ground, conceiving the claim articulated in ground five in the Court below as not that the IAA failed to consider the risk of kidnapping under the complementary protection criterion but rather, at paragraph [45], the task as involving “considering each integer of the Applicant’s claims” and then “to repeat its findings”.

39    Grounds 1 and 2 correspond to correspond to ground 1 of the amended application in the Federal Circuit Court. Ground 3 corresponds to ground 2 of the amended application below. Ground 4 corresponds to ground 5 below.

40    Consistently with the way the submissions were presented by both parties, it will be convenient to deal with grounds 1 and 2 of the amended notice of appeal together.

Consideration

Grounds 1 and 2

41    The appellant contends, in summary, that the primary judge erred in not concluding that the IAA fell into jurisdictional error by failing to consider certain letters that were provided to the delegate by or on behalf of the appellant. Ground 1 refers to “letters” advanced by the appellant. These are the five letters referred to at [9] above. The IAA made a passing reference to these letters at [18] of its decision, but did not otherwise discuss them. Ground 2 refers to the Feldano letters, which have been set out at [11]-[12] above. The IAA did not refer to these letters in its decision.

42    In oral submissions, counsel for the appellant focussed on the Feldano letters. It was submitted that the IAA had an obligation to carry out the review and that, by failing to refer to these letters, the IAA had failed to do so. It was submitted that the letters contained an account that squarely matched core components of the appellant’s claim. Counsel submitted that it was not sufficient to say, as the primary judge had said, that the delegate had dealt with the letters in the delegate’s decision. It was also submitted that the letters were credible.

43    It is not suggested that the IAA did not have the letters before it; rather, the contention is that the IAA fell into jurisdictional error by not considering the letters.

44    Depending on the circumstances, a failure to consider evidence may amount to a jurisdictional error. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J said at [111]-[112]:

111    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

112    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

45    In Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431, the Full Court of this Court (Kenny, Griffiths and Mortimer JJ) said, at [68]-[70]:

68    In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.

69    In Kirk (at [60]-[70] and especially [69]), the High Court made express what has always been implicit in the use and application of the term “jurisdictional error”. Specifically, the Court explained that jurisdictional error is a term that takes its colour from its context and that, when the High Court in Craig v South Australia (1995) 184 CLR 163 explained why it was not prepared to follow Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and why tribunals, unlike courts, could not “authoritatively” determine questions of law, there lay behind the use of the term “authoritatively” unexpressed premises about what is meant by jurisdictional error. The Court did not seek to define the concept in Kirk, but rather acknowledged the futility of doing so, since limits on power with respect to a particular decision can only be found in the relevant statute, in the context of a particular decision, particular reasons and particular evidence and material on which the decision is based.

70    With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

See also Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [52]-[56].

46    I will consider, first, the failure of the IAA to refer to the Feldano letters. The letters have potential relevance to the appellant’s claim that: on 11 March 2012 he was arrested by the Sri Lankan Army, detained, beaten and interrogated for several hours; he was shown phone records and answers were sought; and his family paid a ransom to an influential person to secure his release. In order to consider the appellant’s contention that the IAA failed to consider the Feldano letters, and thereby fell into jurisdictional error, it is necessary to examine the course of the IAA’s reasoning in relation to the relevant claim. The IAA considered the appellant’s claims relating to “Further LTTE assistance and arrest” at [25]-[35] of its decision. At [28], the IAA noted that the appellant had consistently stated that he assisted the LTTE by giving them a mobile phone that he had purchased in his name, that the mobile phone was found and traced to him, that he was arrested in March 2012, and that his release was secured through a bribe. The IAA referred to the appellant’s application for a protection visa and his evidence at the SHEV interview: see [28]-[29]. The IAA indicated, at [29], that it found aspects of the appellant’s account implausible. The IAA discussed, at [30], a discrepancy in the appellant’s evidence as to whether he was arrested by the police, army or other security forces. The IAA indicated that it did not accept his explanation for the discrepancy. At [31], the IAA noted that the delegate had asked the appellant why, if the authorities found the mobile phone in 2009, they did not arrest him until 2012. The IAA considered aspects of the appellant’s responses to be inconsistent. At [32], the IAA stated that, given the appellant’s earlier experience smuggling goods for the LTTE, it considered it implausible that he would purchase traceable goods such as mobile phones with monthly payments in his own name. The IAA also found other aspects of the appellant’s evidence to be implausible at [32] of its decision. At [33], the IAA discussed a discrepancy in the appellant’s evidence concerning the person who negotiated his release. The IAA did not consider the discrepancy to be material; nevertheless, the IAA considered the appellant’s later account to be implausible.

47    At [34], the IAA stated that it did not accept that the appellant would have been released in 2012 if he was of concern to the authorities for having LTTE links. At [35], the IAA stated that, while it accepted that a person’s psychological condition may explain some trouble recalling specific details or incoherent sequencing in events, it was not satisfied that this explained the issues in the appellant’s evidence in relation to his post-2001 claims. The IAA concluded that, given the various inconsistencies in the appellant’s statement and the implausible nature of certain claims, it was not satisfied that the appellant recommenced his work for the LTTE and provided them with support from 2001-2009. The IAA also concluded that, “[g]iven the above discussion around his interrogation and release, I am not satisfied that the applicant was arrested in relation to the mobile phones or his support for the LTTE”.

48    In light of the detailed consideration that the IAA gave to the appellant’s claim that he was arrested in March 2012, as described above, it cannot necessarily be inferred from the failure of the IAA to refer to the Feldano letters that it did not consider them. The provenance of the Feldano letters does not appear to have been explained and they would appear to be less significant than the appellant’s evidence, which was discussed in detail. As the primary judge stated, the Feldano letters were not of critical significance. In this context, it was open to the primary judge to find that the Feldano letters had been considered and that it was not necessary for the IAA to expressly refer to the Feldano letters in its reasons. Accordingly, no error is shown in the primary judge’s decision.

49    As for the other letters provided by or on behalf of the appellant, as the primary judge stated at [27] of the Reasons, the letters did not refer to any matter beyond what the IAA accepted. Accordingly, the fact that the IAA did not discuss these letters does not provide a basis to challenge the IAA’s decision. No error is shown in the primary judge’s decision in this regard.

50    For these reasons, grounds 1 and 2 are not made out.

Ground 3

51    The appellant contends, in summary, that the primary judge erred by not finding that the IAA acted unreasonably by failing to consider whether to exercise the power under s 473DC to get new information. Specifically, it is contended that the IAA should have considered whether to invite the appellant to give new information at an interview.

52    In oral submissions, counsel for the appellant relied in particular on the Feldano letters. It was submitted that the IAA should have considered whether to invite the appellant to give new information in relation to those letters. This represented a shift from the way in which the corresponding ground (ground 2) was presented below.

53    In my view, there is no substance in this ground. Under s 473DB(1) of the Migration Act, subject to Pt 7AA, the IAA must review a fast track reviewable decision referred to it under s 473CA by considering the review material: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. Section 473DC(1) provides that, subject to Pt 7AA, the IAA may, in relation to a fast track decision, get any documents or information that: (a) were not before the Minister; and (b) the IAA considers may be relevant. Section 473DC(2) provides that the IAA does not have a duty to get, request or accept any new information. Under s 473DC(3), the IAA may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview. In relation to Pt 7AA, see DGZ16 at [69], [72], [75] and [76].

54    There is nothing in the circumstances of this case, including the circumstances relating to the Feldano letters, which made it unreasonable in the legal sense for the IAA not to consider whether to obtain new information from the appellant in relation to the Feldano letters. The letters had been discussed by the delegate in the delegate’s decision. It does not appear that the appellant sought to adduce further evidence in relation to the letters in light of the delegate’s comments. Accordingly, ground 3 is not made out.

Ground 4

55    The appellant contends that the primary judge erred by not finding that the IAA failed to carry out its statutory task in that it failed to consider the risk of abductions and kidnapping under the complementary protection criterion.

56    The IAA considered the risk of abductions and kidnapping in the course of its consideration of the appellant’s refugee claims: see [45] of the IAA decision. When it came to the complementary protection criterion, the IAA (at [68]) referred back to its earlier findings (namely that it was not satisfied that the appellant faced a real risk of significant harm in the reasonably foreseeable future for reasons of his race, gender or origins). Further, at [69], the IAA referred to and relied upon its reasoning and conclusions in relation to the refugee assessment.

57    In oral submissions, counsel for the appellant submitted that the IAA’s findings at [68]-[69] did not deal with the risk of harm irrespective of a nexus to race or ethnic group.

58    I am not satisfied that any error is shown in the primary judge’s disposition of the corresponding ground below (ground 5). The risk posed by abductions and kidnappings emerged from the country information, including that provided by the appellant’s representative (see Appeal Book page 293). However, the way in which this material was relied on by the appellant was in support of his claims under the Refugee Convention. In the circumstances, it was appropriate for the IAA to consider the risk in these terms, both in relation to the refugee assessment and complementary protection. I am not satisfied that a separate issue of risk of abductions and kidnapping (aside from race or ethnicity) clearly arose on the material before the IAA.

59    It was open to the IAA to refer to and rely on its earlier findings in the refugee assessment in circumstances where the same issues were also relevant to the complementary protection assessment: see, eg, DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [54].

60    For these reasons, ground 4 is not made out.

Conclusion

61    It follows from the above that the appeal is to be dismissed. At the hearing both sides accepted that costs should follow the event. Accordingly, I will also order that the appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    25 March 2019