FEDERAL COURT OF AUSTRALIA

BBE17 v Minister for Immigration and Border Protection [2019] FCA 573

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court on 25 October 2018 be set aside and, in lieu thereof, the Court makes the following orders:

(a)    an order to quash the decision of the Immigration Assessment Authority dated 6 March 2017 and to remit the Appellant’s visa application to the Authority to be re-determined according to law;

(b)    there be no order as to costs of the proceeding before Federal Circuit Court; and

(c)    the First Respondent pay the Appellant’s costs of the appeal.

3.    The parties have liberty to file short submissions in relation to costs, within seven days.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a decision of the Federal Circuit Court dismissing his application for judicial review of a decision of the Immigration Assessment Authority (the Authority), which had affirmed a decision of the delegate of the First Respondent, the Minister for Immigration and Border Protection (the Minister) to refuse to grant him a Safe Haven Enterprise (Class XE) visa (visa): see BBE17 v Minister for Immigration and Border Protection [2018] FCCA 2200.

2    The appellant advances two grounds of appeal of the Authority’s decision. The first relates to its treatment of new information pursuant to s 473DD of the Migration Act 1958 (Cth) (the Act). The second ground concerns the alleged failure of the Authority to deal with what the appellant asserts is an integer of his claim to fear serious or significant harm if he is returned to Sri Lanka: that his brother returned to Sri Lanka from Indonesia in November 2013 and disappeared. This ground was not advanced before the Federal Circuit Court and the appellant requires leave before it may be advanced for the first time on appeal.

3    For the reasons I explain, I am satisfied that it is appropriate to grant leave to the appellant to advance the second ground of appeal, and that the appeal should be allowed on this ground.

THE PROCEDURAL AND FACTUAL BACKGROUND

4    The appellant arrived in Australia as an unauthorised maritime arrival on 13 November 2012. He lodged an application for a visa on 6 January 2016 accompanied by a statutory declaration made on 3 January 2016. The delay in making an application was not of his making. By operation of s 46A of the Act he was prevented from applying for a visa until the Minister notified him on 21 December 2015 that the bar was lifted.

5    In his visa application and subsequent interview the appellant claimed to fear harm on return to Sri Lanka from the Sri Lankan authorities and Tamil paramilitary groups. He made various claims which may be summarised as follows:

(a)    in 1998 he was conscripted into the Liberation Tigers of Tamil Eelam (LTTE) and taken to a LTTE camp. He escaped from the camp and managed to travel to a village close to the LTTE and Sri Lankan army border, where his parents made arrangements for him to be smuggled out with the help of some Tamil fishermen. He remained in a hidden bunker in an abandoned house for several days before his parents made arrangements for him to leave Sri Lanka on a false passport;

(b)    in April 2003 he returned to Sri Lanka because there was a ceasefire and he believed the situation had improved. He was taken for questioning by the LTTE and detained for two days, during which time he was told he needed to join the LTTE’s political office. He agreed out of fear, and was released. He then travelled to Colombo and departed again for Saudi Arabia on the same false passport;

(c)    approximately one month after he left he learned that the army, Special Task Force and members of the Tamil paramilitary group Eelam People’s Democratic Party had gone to his parents’ house in search of him, and assaulted and harmed his parents. His parents and siblings moved house after this incident and he could not contact them;

(d)    he was deeply worried and mentally affected by this, and he attempted to commit suicide in Saudi Arabia in 2005;

(e)    in 2005 he returned to Sri Lanka after being treated in hospital in Saudi Arabia for his mental condition, and underwent further treatment in a private medical centre in Sri Lanka;

(f)    in 2006 he was forcibly taken by members of the Tamil Makkal Viduthalai Pulikal (TMVP) (also known as the Karuna group) to their camp and detained for 25 days, during which time he was told he needed to join the TMVP and undergo military training. He and some others refused to join. He was severely beaten. Several others who also refused were either thrown onto a fire or taken out to sea and beheaded. The appellant and other survivors were taken back to shore and tortured, including by suffocation with a polythene bag and pouring petrol inside. He could not bear the torture anymore and so agreed to work for the group;

(g)    he managed to escape from the TMVP camp in 2006;

(h)    he left Sri Lanka in 2006/2007 and returned to Saudi Arabia;

(i)    in 2011 his passport was due to be renewed and his employer in Saudi Arabia went to the Sri Lankan embassy with the passport. The embassy subsequently called his employer and advised the employer to hand over the appellant to them. Instead his employer transferred him to another company and allowed him to work there;

(j)    in August 2012 the appellant returned to Sri Lanka because the war was over and he believed it would be safe. He was detained by the CID at the airport and told to sign a document in Sinhala confirming that he was a member of the LTTE. He refused to sign the document and the officers told him he would need to face another interview;

(k)    on 8 September 2012, Tamil armed men who said they were TMVP members came to his house (while he was away) searching for him. They told his wife and members of her family that they needed to hand him over. They assaulted his wife, damaged property inside the house and told his wife that he would be killed;

(l)    he sought refuge in a church, but the priest told him that he could not protect him from the TMVP. The priest took him to a house where he stayed until he again fled Sri Lanka;

(m)    after he landed in Australia he learned that the CID had contacted his mother on 9 December 2012, and told her that she needed to hand him over to the 4th floor in Colombo;

(n)    on 3 December 2012 his wife was physically abused by TMVP members at their home and she miscarried;

(o)    in 2015 the TMVP came looking for his wife at her home. At the time she was not there, but her parents and sister were present and items in the house were destroyed; and

(p)    his brother voluntarily returned to Sri Lanka from Indonesia in November 2013, through the International Organization for Migration program, and disappeared. The appellant believes his brother’s disappearance was because of him.

He claimed to fear harm from Tamil paramilitary groups and/or the Sri Lankan authorities if he is returned to Sri Lanka.

6    On 14 September 2016, a delegate of the Minister refused to grant the appellant a visa, and the matter was referred to the Authority for review. It is unnecessary to set out the basis for delegate’s decision since it has been superseded by that of the Authority.

The Authority’s decision

7    On 22 October 2016, the appellant’s representative provided the Authority with a psychological assessment report of the appellant by Kuni Takeshima (psychological report). The report dealt with the appellant’s functioning and treatment prospects, but also contained a personal history of the appellant in which several pieces of new or clarifying information were included.

8    On 6 March 2017, the Authority decided to affirm the delegate’s decision to refuse to grant the appellant a visa. It had regard to the psychological report provided by the appellant and it was satisfied that the personal history provided by the appellant was not new information, noting that much of it was consistent with the information and claims before the delegate. The Authority noted however that the “History” section of the report contained two new claims that were not before the delegate, and was not satisfied that there were exceptional circumstances to justify considering the new claims pursuant to s 473DD(a) of the Act.

9    In broad summary the Authority accepted that the appellant had been taken to a LTTE training camp in 1998, that the LTTE asked him to attend their offices in 2003, that he was taken by the TMVP and held in their camp in 2005, and that he had departed Sri Lanka illegally. However it did not accept that the Sri Lankan authorities or members of a Tamil paramilitary group came to his parents’ house looking for him in 2003, that he had any profile of interest to the authorities at that time or that the TMVP was looking for him and visiting his family between 2012 and 2013. On this basis the Authority did not accept that he had any association or perceived association with the LTTE that would mean he was at risk of being harmed by them and he did not face a serious risk of harm from the TMVP or any other paramilitary group or the Sri Lankan authorities arising from his forced recruitment and escape from the TMVP in 2006.

The Federal Circuit Court proceeding

10    The appellant sought judicial review of the Authority’s decision by an application for review dated 14 March 2017, and he later filed an amended application for review dated 6 August 2018. The amended application advanced two grounds which, broadly speaking, challenged the Authority’s application of s 473DD to the psychological report and its findings about the appellant’s ability to receive treatment in Sri Lanka for his mental health issues.

11    In light of my conclusion that it is appropriate to allow the appeal on a ground that was not advanced before the Federal Circuit Court, it is unnecessary to detail the grounds below. It suffices to note that on 25 October 2018 the primary judge made orders to dismiss the application.

THE APPEAL TO THIS COURT

GROUND 1

12    Ground 1 in the amended notice of appeal alleges that the primary judge erred in not finding that the Authority fell into jurisdictional error by failing to treat the whole of the psychologist’s report as new information under ss 473DC and 473DD of the Act.

13    The Minister filed a notice of contention in relation to this ground of appeal, by which he says that the decision of the Federal Circuit Court to dismiss the application should be affirmed on another basis: that the Authority did not err by treating the two elements of the history recounted to a psychologist and contained in a psychologist’s report as new information within the meaning of section 473DC(1) of the Act and by excluding that new information from consideration under section 473DD.

14    I can see little merit in Ground 1 of the appeal but, in light of my conclusion that the appeal should be allowed under Ground 2 it is unnecessary to deal with this ground.

GROUND 2

Whether leave should be granted

15    The appellant did not advance Ground 2 of the appeal before the Federal Circuit Court, and he requires leave before he may advance this ground for the first time in the appeal.

16    An appellate court has discretion to permit an appellant to argue a new issue on appeal where it considers that it is expedient in the interests of justice to entertain the issue and where the proposed new ground could not possibly have been met by calling evidence in the hearing below: Water Board v Moustakas (1988) 180 CLR 491 at 497. The court is more likely to permit a new ground to be advanced on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

17    The Minister submits that leave to advance the new ground should be refused. The Minister argues that the appellant had legal representation before the Federal Circuit Court and that he should be held to the way in which he advanced his case in that court, and that in any event the ground has insufficient prospects of success to justify a grant of leave.

18    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave as follows:

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

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

(c)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

(d)    What is at stake in the case for the appellant?

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

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

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

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

These considerations have been applied in numerous decisions.

19    The prospects of success of a proposed new ground is an important consideration in deciding whether to grant leave. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

20    In considering what is at stake for the appellant, cases involving an asylum seeker often have a particular sensitivity in relation to whether the interests of justice favour a grant of leave, since an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [35]-[38] (Murphy, Mortimer and O’Callaghan JJ).

21    On the Minister’s submissions the primary consideration weighing against a grant of leave is that the appellant had legal representation before the Federal Circuit Court and did not raise Ground 2 before that court. However, Mr Stephen Hodges, the solicitor for the appellant, made an affidavit on 13 February 2019 in which he deposes that he drafted and filed the amended application in the Federal Circuit Court. He states that counsel suggested that Ground 2 be raised in the appeal, he did not consider that ground when he drafted the amended application in the Federal Circuit Court, and the failure to plead Ground 2 in the application below was not the result of a forensic decision.

22    While the fact that the applicant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. Indeed, leave may be given for a new ground appeal even where the proceeding below has been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below. What is at stake in a public law case is the lawfulness of the exercise of public power affecting the interests of an individual, and the considerations that inform whether leave should be granted to advance a new ground of appeal in a public law case are not necessarily the same as in a case between private parties: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J), endorsed by the Full Court in CGA15 at [37].

23    All other relevant considerations in the present case favour a grant of leave. First, the appeal ground raises a question of law relating to whether the Authority considered an integer or component integer of the appellant’s claim and the materiality of any such failure. Second, the Minister did not contend that he would suffer any specific prejudice if leave is granted. Third and most importantly, for the reasons that follow in my view not only does the new ground have merit, but it should succeed. I am satisfied in the present circumstances that it is expedient in the interests of justice to grant leave to advance Ground 2 of the appeal.

The amended notice of appeal

24    Ground 2 of the amended notice of appeal relevantly contends that:

His Honour [the primary judge] erred in not finding that the Authority had failed to address all the appellant’s claims.

Particulars

(a)    the Authority failed to address [the] appellant’s claim that his brother had disappeared in 2013.

25    The amended notice of appeal also includes particular (b) which alleges that the Authority failed to address the appellant’s claim that his wife’s family was attacked in 2015. The appellant accepted however that, read beneficially, the Authority’s reasons can be seen as addressing that claim and he did not press that part of Ground 2.

The Minister’s submissions

26    The Minister submits, and I accept, that it is established that the absence of an express reference to evidence in a decision-maker’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by the decision-maker. It may be that some evidence is irrelevant and that some contentions may be misconceived. The Minister also submits, and I accept, that there is no requirement for a decision-maker to refer to every piece of evidence or every contention made by an applicant in its statement of reasons: ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 (ETA067) at [13]-[14] (Bell, Keane and Gordon JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [89] (McHugh, Gummow and Hayne JJ) and BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 at [8] and [10] (and the authorities cited therein).

27    As regards the critical aspects of the appellant’s protection claims the Minister submits that:

(a)    the Authority accepted the appellant’s claims that he was taken to a training camp in 1998, that the LTTE asked him to attend their offices in 2003 and that he was questioned by the CID at Colombo airport in 2012. However it did not accept that he had any association or perceived association with the LTTE that would lead to him having an at-risk profile. It was therefore satisfied that he did not have a well-founded fear of harm as a result of his past LTTE involvement;

(b)    the Authority accepted the appellant’s claim that he was taken and held in a TMVP camp in 2005. However the Authority was not satisfied that the TMVP had any ongoing or particular interest in him. On this basis it concluded that he did not face a real chance of serious harm from the TMVP or any other paramilitary group or government authority arising from his forced recruitment and escape in 2006; and

(c)    the Authority was not satisfied that the country information submitted by the appellant or that before the delegate demonstrated that all Tamils from the East of Sri Lanka face a real chance of harm based on their ethnicity and location, and found that any general difficulties and disadvantage that may be suffered by the appellant would not constitute serious harm.

28    The Minister argues that the appellant failed to explain how the claim that his brother disappeared was material to the Authority’s reasoning on any of these matters. Notably, the appellant did not claim to fear harm as a result of his brother’s disappearance, and the appellant’s fear that the disappearance was because of him was not linked to any of his claims to fear harm. The Minister submits that the matter is not something that can be said to be “an essential integer to an applicant’s claim or one that would be dispositive of the review”: see ETA067 at [14]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) at [46] (French, Sackville and Hely JJ). On this basis the Minister argues there is no basis for inferring that the Authority overlooked the matter.

Determination

29    The Authority is required to consider the claims of a referred applicant and their component integers, and to make a decision without having done so is to fail to complete the exercise of jurisdiction embarked on: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42] (Allsop J as his Honour then was, with whom Spender and Merkel JJ agreed).

30    The Authority is required to deal with claims that arise on the materials and evidence before it, but is not required to consider a case “that is not expressly made or does not arise clearly on the materials before it”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1; [2004] FCAFC 263 (NABE) at [61]. In NABE the Full Court said that:

…The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

31    The Authority is not obliged to refer to or adequately consider every matter or piece of evidence, regardless of whether it might be thought probative or not: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] (Kenny J). However, failure to consider a matter which is (a) an essential integer of the applicant’s claim; or (b) would otherwise be dispositive of the review has been held to constitute jurisdictional error where the matter is material: ETA067 at [14].

32    In deciding whether an administrative decision-maker has overlooked a matter, it is relevant to consider, among other things, whether the matter was identified at some point in the decision, the relationship of the matter to other facts and findings and its significance to the overall claim. In Applicant WAEE, the Full Court said at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

33    It is uncontentious that nowhere in the Authority’s reasons, including in the section of the Authority’s reasons headed “Refugee assessment”, did the Authority mention or give express consideration to the disappearance in November 2013 of the appellant’s brother following his return to Sri Lanka. The Authority did not mention the appellant’s claim in this regard, notwithstanding that it set out his various other claims over one and a half pages of its reasons.

34    At [18]-[19] of its reasons the Authority referred to the UNHCR Eligibility Guidelines for Sri Lanka (December 2012) and the United Kingdom Home Office Country Information and Guidance report of May 2016 which set out the types of LTTE links that may, in the opinion of those organisations, give rise to a need for protection. At [20] the Authority concluded that the appellant was not of ongoing interest to the Sri Lankan authorities because of actual or perceived LTTE associations. It said:

I do not consider that the applicant had or has any association, or perceived association with the LTTE that would fit within any of the profiles indicated above that country information indicates may be at risk, nor one that would lead to him being included on a ‘stop’ list. While I accept that the CID questioned him in 2012, I consider that his release and the lack of any interest in him (other than his TMVP claims considered below) indicate that he does not have an adverse security profile arising from his LTTE involvement. I am satisfied that he does not have a well-founded fear of serious harm as a result of his past LTTE involvement.

35    Having disposed of the appellant’s claims that if returned to Sri Lanka he would be at risk for actual or perceived LTTE links, the Authority turned to consider his claims relating to the TMVP. The Authority concluded (at [24]-[25]) that the appellant was also not of ongoing interest to the TMVP. It said:

The applicant claims that after escaping from the TMVP, he fled to a travel agent’s office, remaining there until he obtained a genuine passport and left Sri Lanka. He has not made any claim and there is no evidence before me that the TMVP was trying to locate him during this period, or that the TMVP visited his family or his wife at any time between 2006 and 2011. I do not accept that he was a person with particular skills, information or profile that would have led the TMVP to have a particular interest in the applicant as an individual. While I am prepared to accept that the applicant had a genuine fear of being recaptured by the TMVP, I am not satisfied that the TMVP had any ongoing interest in the applicant.

I am not satisfied that the applicant is a person of interest to the TMVP. It follows that I do not accept the remainder of the applicant’s claims that between 2012 and 2013 the TMVP was seeking the applicant, visiting, harassing and assaulting his family or destroying the family’s property. I am satisfied that the applicant does not face a real chance of serious harm from the TMVP or any other paramilitary group or government authority arising from his forced recruitment and escape in 2006.

It is common ground between the parties that the appellant’s fears related more to the TMVP than to any other Tamil militant group, and by implication on the appellant’s account this was the Tamil militant group most likely to be responsible for the disappearance of his brother.

36    The absence of any express reference to or consideration by the Authority of a piece of evidence does not necessarily constitute jurisdictional error, but in my view the appellant’s claim regarding his brother’s disappearance was an important integer or component integer of his claims and on a fair reading of the Authority’s reasons it is appropriate to infer that it was overlooked. I consider the Authority’s failure to consider the claim could realistically have affected the outcome of the application, and its error is therefore jurisdictional.

37    First, the appellant’s claim that his brother disappeared in November 2013 was a separate component integer of his claim in the sense described in SZOYH v Minister for Immigration and Citizenship [2012] FCA 713 (SZOYH) at [44] and [47]-[48]. In that case Reeves J considered that a fourth incident raised by the applicant and not expressly dealt with by the decision-maker constituted a separate component integer of his claim, on the basis that it was more recent than the other incidents referred to, was of a different and more serious nature and was supported by documentary evidence.

38    The gist of the appellant’s claim before the Authority was that his brother disappeared without trace on his return to Sri Lanka in 2013 (and should be inferred to have been killed) as a result of his connection to the appellant and/or the appellant’s family. Although not expressly articulated it was obvious that the appellant claimed that the disappearance resulted from the actions of either the Sri Lankan authorities or a Tamil paramilitary group such as the TMVP.

39    That claim was different to and more serious than his other claims that members of his family were assaulted. I am not persuaded by the Minister’s contention that the circumstances of this case are such as to relevantly distinguish it from SZOYH and I consider the recentness and seriousness of the claim were such that the Authority was required to consider and deal with it. That the Authority did not even refer to the claim, let alone expressly consider it, supports an inference that the Authority overlooked it or failed to engage in the required active intellectual process in relation to the claim.

40    Second, I do not accept the Minister’s submission that the claim should be treated as having been subsumed or disposed of by the Authority’s general finding that the appellant is of no interest to the TMVP at [25] of its reasons (set out at [35] above).

41    The Tribunal dealt with whether the appellant faced a real chance of serious harm from the TMVP at [21]-[25] of its reasons. At [22] the Authority described the TMVP/Karuna group. At [23] the Authority expressed some doubts in relation to the applicant’s account that he was forcibly taken into a TMVP camp in 2006, although it ultimately accepted that he was so taken, that he was mistreated while in the camp, and that he managed to escape in 2006. At [24] the Authority recounted the appellant’s claim that he then left Sri Lanka and noted that the appellant made no claim that in the period between 2006 and 2011 the TMVP was trying to locate him or that its members visited his family or his wife.

42    Turning to [25] of the Authority’s reasons, the first sentence states “I am not satisfied that the applicant is a person of interest to the TMVP”. On a fair reading that conclusion relates to the statement in the preceding paragraph that the appellant made no claim that the TMVP showed any interest in him in the period between 2006 and 2011. In my view a generalised finding about lack of interest by the TMVP in 2011, based on events over the preceding five years, cannot rationally be said to subsume or dispose of a claim about an event two years later, which claim the Authority’s reasons do not even disclose it was aware of.

43    The second sentence of [25] states:

It follows that I do not accept the remainder of the applicant’s claims that between 2012 and 2013 the TMVP was seeking the applicant, visiting, harassing and assaulting his family or destroying the family’s property.

That is a conclusion relating to the events that the Authority did set out in its reasons (at [8]): that is, (a) that the TMVP came to his house and assaulted his wife in December 2012; and (b) the TMVP came looking for his wife at her mother’s house in 2015 and assaulted her parents and sisters and destroyed items in the house. There is nothing in this sentence to suggest that the Tribunal also had in mind claims beyond these. I do not accept that the appellant’s claim that his brother had disappeared in 2013 (of which claim the Authority made no mention) is subsumed by or disposed of by a general finding in relation to other events.

44    Third, contrary to the Minister’s submission, the claim that his brother disappeared upon return to Sri Lanka is significant to the appellant’s claim to have a well-founded fear of persecution if he is returned there. The Authority accepted that the appellant had been involved with the LTTE, and that he had been forcibly taken by the TMVP to its camp in 2006 where he saw extreme violence and was mistreated before managing to escape. Its reason for concluding that there was not a real chance he would suffer serious harm if returned to Sri Lanka was almost entirely based on its conclusion that, notwithstanding those past events, the TMVP and/or the Sri Lankan authorities had no ongoing adverse interest in the appellant. If the claim that the appellant’s brother disappeared (that is, was killed) upon his return to Sri Lanka in 2013 is accepted, that would be evidence capable of leading to a different conclusion.

45    Counsel for the Minister accepted that it is fair to infer that the TMVP is still active in Sri Lana and that it was in a position to harm a returnee if it had reasons to do so. If accepted, this claim, combined with the accepted fact that the Sri Lankan embassy told the appellant’s Saudi Arabian employer to hand him over to the Sri Lankan authorities, is capable of supporting a finding that the TMVP and/or the Sri Lankan authorities had an ongoing adverse interest in the appellant. The claim is a significant component integer of the appellant’s claim, that might have affected the decision the Authority reached: see SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [33] (Lander J) and SZOVB v Minister for Immigration and Citizenship (2011) 125 ALD 38; [2011] FCA 1462 at [43] (Katzmann J).

46    Fourth, the Minister essentially submits that the appellant’s claim that his brother disappeared can reasonably be understood as a matter the Authority considered but did not mention because it was not material. I take a different view. As I have said, the appellant’s claim regarding his brother’s disappearance concerned a relatively recent and serious matter, and it related directly to the Authority’s finding that by 2012 the Sri Lankan Authorities and/or Tamil paramilitary groups had no ongoing interest in the appellant. If accepted, in combination with the CID’s questioning of the appellant in 2012 and that the Sri Lankan embassy told the appellant’s Saudi Arabian employer to hand him over to the Sri Lankan authorities, it is capable of being seen as logical and probative evidence indicating that the appellant was the subject of ongoing adverse interest. In my view the fact that the Authority did not refer to the claim at any point in its reasons supports an inference that it was overlooked or that the Authority did not engage in the requisite active intellectual process in relation to the claim.

47    Fifth, the Authority’s finding that the Sri Lankan authorities and/or Tamil paramilitary groups had no ongoing interest in the appellant was the primary basis upon which it concluded that the appellant did not face a real chance of suffering serious harm if returned to Sri Lanka. For the reasons already stated the tribunal’s error in overlooking of the claim is material. That is, had the Authority considered the appellant's claim regarding his brother’s disappearance there is a realistic possibility that it would have made a different decision: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 at [25]-[31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ).

48    Ground 2 of the appeal is allowed.

COSTS

49    It is appropriate to set aside the orders of the Federal Circuit Court made 25 October 2018, and in lieu thereof to make an order in the nature of certiorari to quash the decision of the Authority, and an order in the nature of mandamus requiring the Authority to re-determine the appellant’s application according to law.

50    I am not aware of any reason why costs should not follow the event and I have made an order for the Minister to pay the appellant’s costs of the appeal. Ordinarily I would also order that the Minister pay the costs of the hearing before the Federal Circuit Court, but before that Court the appellant did not advance the ground upon which he has succeeded in this appeal. In those circumstances I consider it appropriate to make no order as to costs in relation to the Federal Circuit Court proceeding. I have made an order in those terms but grant liberty to the parties to make submissions in relation to costs should they contend a different result is appropriate, doing so within seven days.

Associate:

Dated:    26 April 2019