FEDERAL COURT OF AUSTRALIA

AFZ17 v Minister for Immigration and Border Protection [2019] FCA 1035

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court on 7 May 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 23 December 2016 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 the 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 which dismissed his application for judicial review of a decision of the Immigration Assessment Authority (the Authority). The Authority had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant him a Safe Haven Enterprise (Class XE) (subclass 790) visa (protection visa).

2    For the reasons set out below it is appropriate to make orders to allow the appeal, to set aside the orders of the Federal Circuit Court, and to remit the appellant’s visa application to the Authority to be re-determined according to law.

The Factual and procedural history

3    The appellant arrived in Australia by boat on 19 October 2012, without a visa, and was therefore an ‘unauthorised maritime arrival” under the Migration Act 1958 (Cth) (the Act). On 22 January 2016 he lodged an application for a protection visa after the Minister exercised the power under s 46A of the Act to allow the appellant to do so. He claimed to fear harm from Sri Lankan authorities if returned to that country and made claims which may be summarised as follows:

(a)    the appellant’s brother, J, was killed fighting for the LTTE in 1997. The appellant’s father arranged for forged documents to state that J had died as a result of shelling. The appellant believes this was done in an effort to disassociate him from the LTTE;

(b)    his appellant’s other brother, S, was also a fighter in the LTTE. S worked for an LTTE-associated paper called Uthayan, and then joined the LTTE in about 1995. He sustained a head injury from shelling while fighting for the LTTE. S was arrested and sent to a rehabilitation camp before he fled to Qatar where he now lives and works;

(c)    the appellant and his brothers were often beaten and questioned by the Sri Lankan Army (SLA) when going to school;

(d)    in about 1995-97, the appellant and his family were relocated to Vanni because of the civil conflict. They later returned to Jaffna but were placed in an army camp;

(e)    after the appellant finished school he obtained employment with the Danish Demining Group (DDG), which was involved in clearing landmines in the north of the country. In November 2006 the appellant was taken by the army and beaten and tortured. The army suspected him of being in the LTTE. The appellant noted that some army soldiers believe that mine clearance work can only be done by persons who were involved in planting mines. He also said the army may want to know or have drawings and maps made of mine clearance sites;

(f)    the appellant’s boss questioned the army about the appellant’s treatment in November 2006 and the appellant was threatened he would be killed if he mentions such incidents again;

(g)    following the beating in 2006 he received treatment for about three months. However the appellant did some work clearing trees and bushes for his brother to earn some money;

(h)    in mid-2012 DDG completed its work in Sri Lanka. The appellant had felt safe as long as he was working for DDG, but as he could no longer secure work with DDG he made arrangements to depart Sri Lanka;

(i)    a driver who worked for DDG was killed and two other workers for the DDG went missing;

(j)    the appellant fears that if returned to Sri Lanka he will be killed because his brothers were in the LTTE and the army will kill him in revenge of LTTE activities during the civil war.

4    The appellant did not state in his entry interview that his brothers were fighters in the LTTE. He explained in his visa application that he did not do so because he had been worried about the consequences for his family if he did. His written statement accompanying the visa application stated:

I have not revealed my siblings affiliation with the LTTE when I was interviewed by the department. No one told me not to reveal but I was fearful in my mind that my family in Sri Lanka will be in trouble. I have attached some evidence.

My brother [J] was in the LTTE and fought for that movement. He was killed in action in the [name redacted] battle in 1997. His details are in the LTTE website, which has all details of persons who are been regarded as heroes of that movement.

My other brother, [S], was a fighter in the LTTE. As he feared for his life he fled to Qatar, where he lives and works now.

He explained the importance of this information to his claims in the following terms:

This information is important as I will be seen as a person associated with the LTTE.

5    On 28 September 2016 a delegate of the Minister refused to grant the appellant a protection visa. The appellant’s application was automatically referred to the Authority for review.

6    On 23 December 2016 the Authority affirmed the delegate’s decision to refuse the appellant a visa. Relevantly to the grounds of the appeal, the Authority found that neither J nor S was involved in the LTTE.

7    On 15 January 2017 the appellant filed an application for judicial review of the Authority’s decision. The Federal Circuit Court dismissed that application and provided reasons for doing so on 7 May 2018: see AFZ17 v Minister for Immigration and Border Protection [2018] FCCA 1340.

8    On 15 May 2018 the appellant filed a notice of appeal from the judgment of the Federal Circuit Court. Subsequently, prior to the hearing, the appellant abandoned those grounds of appeal and sought leave to amend the notice of appeal in terms of the proposed amended notice of appeal dated 25 February 2019. The proposed amended notice advanced two grounds of appeal, neither of which were advanced before the Federal Circuit Court. The appellant therefore required a grant of leave before he could be permitted to advance those grounds for the first time on appeal.

The Appeal to this court

The pro bono referral

9    The appellant filed a notice of appeal on 15 May 2018 and the matter was set down for hearing on 15 November 2018. On 30 October 2018 the appellant attempted to contact the Court to seek an adjournment on medical grounds, and to seek the appointment of pro bono counsel pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). Because of an error in the email address used by him, that email was not received by chambers until shortly prior to the hearing, when it was forwarded by the solicitor for the respondent. The application for adjournment came to the attention of the Court too late to give it consideration prior to the hearing.

10    At the hearing the appellant was not legally represented and required an interpreter. Through the interpreter the appellant said the reason for his delay in seeking the appointment of pro bono counsel was that the hearing date was communicated to him via email, which he did not open, because he had expected that the Court would communicate the date via post as it had done previously. The Minister’s legal representative was unable to state when the hearing date was first notified to the appellant, but noted that the Australian Government Solicitor notified the appellant of the date by both of express post and email on 23 October 2018. The appellant also sought to explain his delay in seeking the appointment of pro bono counsel by stating that he had an operation in February 2018 which resulted in a period of subsequent unemployment such that he could not afford to retain a lawyer.

11    The Minister opposed both the adjournment and the appointment of pro bono counsel on the basis that there had been a significant delay between the filing of the notice of appeal in May 2018 and the request to adjourn in October. The Minister further submitted that the appellant’s case had insufficient prospects of success to justify the appointment of pro bono counsel and contended that the hearing should proceed.

12    In my view there was little merit in the appellant’s contention that he did not open the email from the Court because he expected to be advised of the hearing date by mail. Having commenced the appeal the appellant should have been attentive to any communication from the Court. Nor was there material to persuade the Court that, at the time of the hearing, the appellant’s medical condition was sufficiently serious to justify an adjournment. His argument was that his medical condition caused him to be unemployed for a period and he therefore could not afford a lawyer.

13    I did not consider the application for an adjournment to be strong but I accepted that the appellant’s medical condition meant he could not employ a lawyer in the period after lodging the appeal, and it might also provide some explanation for his failure to seek pro bono assistance earlier, as might the fact that it appears that he was not informed of the hearing date until about three weeks before the appeal was listed. Also relevant to the application for adjournment is that, as I explained at the hearing, some aspects of the Authority’s reasoning were troubling. What is at stake in the appeal is the lawfulness of the exercise of public power and the Court should be cautious before allowing an administrative decision which is arguably affected by error to be carried into effect.

14    I considered the Court would be assisted by the appointment of pro bono counsel to give further consideration to the concerns I raised with the parties, and I allowed an adjournment so that could occur. Mr Oliver Jones of counsel accepted the subsequent pro bono referral, and the Court expresses its thanks to him for doing so. He prepared submissions and appeared on behalf of the appellant at the subsequent hearing on 25 February 2019.

The relevant principles regarding new grounds of appeal

15    At the subsequent hearing the appellant sought leave to advance two fresh grounds of judicial review, raised for the first time on appeal. He argued that it was in the interests of justice for him to be permitted to do so as the grounds have merit and there is no real prejudice to the Minister: see for example, Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [20]-[21] (Griffiths and Perry JJ).

16    The Minister submitted that leave to advance the proposed new grounds of appeal should be refused, having regard to:

(a)    the fact that the appellant did not provide a satisfactory explanation for why these grounds were not raised before the primary judge, noting that the appellant was represented by counsel in that hearing;

(b)    the merits of the proposed grounds; and

(c)    proposed Ground 1, if entertained, would require further evidence to be adduced because the record of all the evidence before the Authority was not before the Court.

17    An appeal court has a discretion to allow an appellant to raise new grounds on appeal where the court considers that it is expedient and 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; (2015) 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

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

(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?

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

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.

20    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    The fact that the appellant had legal representation in the hearing below weighs against a grant of leave, but leave may be granted even when that is the case and the only explanation for the failure to raise the new ground was that its significance may not have been apparent to the lawyers. 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]. It is relevant too that the new grounds do not involve much dislocation to the Court or the efficient use of judicial sitting time. The necessary hearing will be short.

22    In the circumstances of this case, I consider the question of whether to grant leave to advance the proposed new grounds of appeal largely falls to be determined by reference to their merits of those grounds. The parties conducted the hearing on that basis. For the reasons set out below I consider that not only does Ground 1 have sufficient merit to justify a grant of leave, but the appellant succeeds on that ground. Leave to advance a new ground of appeal in respect of Ground 2 is refused, as in my view it lacks sufficient merit.

Ground 1

23    Ground 1 of the proposed amended notice of appeal concerns two findings of fact by the Authority, which essentially concern the Authority’s findings that the appellant’s brothers, J and S, were not involved with the LTTE. Ground 1 states:

The Authority made a jurisdictional error by making a finding of fact which was in breach of the no evidence rule or was legally unreasonable.

(a)    the finding of the Authority at AB 151 [13] was that the document called “Copy of the Complaint” read as if its account of the circumstances of the death of J was so detailed as to be truthful.

(b)    the finding of the Authority at AB 152 [18] of its decision was that S was permitted to leave Sri Lanka legally.

(c)    there was no probative material or logical ground for the above findings nor did they have an evident and intelligible justification.

24    The appellant said, and I accept, that the Authority’s findings regarding whether S and J were fighters in the LTTE were important to its determination that the appellant was not at risk of serious harm if returned to Sri Lanka. That is so because, if the Authority accepted that either brother was involved with the LTTE, the appellant fell within one of the profiles that the United Nations High Commissioner for Refugees Eligibility Guidelines (UNHCR Guidelines) state may require international protection: that is, close family members of former LTTE combatants.

25    The Authority treated the UNHCR Guidelines as relevant (at [32] of its reasons) and accepted (at [44]) that a returnee may face a risk of harm where he or she has an adverse profile, for example, suspected LTTE links. The Authority however did not accept that the appellant had an actual or imputed connection to the LTTE. The Authority’s reasons for finding that neither S nor J were fighters in the LTTE are central in the appeal, and in relation to S its reasons for so finding included that it did not accept that S illegally fled to Qatar and instead departed Sri Lanka legally.

The Authority’s findings about S

26    The Authority set out the appellant’s evidence about S at [15]-[16] as follows:

The applicant claimed that his older brother, S, was a fighter in the LTTE and had left Sri Lanka for Qatar where he now resides because the SLA was targeting him. The applicant was then asked in detail about his brother’s experience in the LTTE. His responses were, in my view, confusing and at times deliberately evasive. When asked when S was in the LTTE, he stated it was from 1995 to 2012; he then said it was until the end of the war. He claimed S went to work for a newspaper and that’s how he joined the LTTE; he also stated S stayed with the LTTE and visited home once a month. When the delegate asked how S was able to visit home given the area was under government control the applicant respondent that it was not now, but in 1995 to 2002 and S got rehabilitated. The delegate then asked when S joined the LTTE. He stated S went looking for work in 1995, he didn’t go to join the LTTE but went looking for a job during the war, that they paid 10,000 rupees a month, it was in the printing industry and that he did not go to join the LTTE but after working with them he eventually joined. The delegate put to him that it wasn’t the LTTE. The applicant then stated that it was an LTTE newspaper called ‘Uthayan’ and they had many papers. When asked how long S remained with the LTTE the applicant replied until the end of the war. When it was put to the applicant whether this was 2009, the applicant replied he did not know when the war ended. In response to the question whether S did any other work for the LTTE besides printing and photocopying the applicant relied he did other jobs but he did not know what the other jobs were. When asked directly whether he was a fighter for the LTTE he stated he had shell pieces in his head so he may have fought with them and that when he returned home after the end of the war, he had a shaved head, the piece was near his brain and he would easily get irritated or angry. When the delegate asked him whether he had told anyone in the family he was a fighter with the LTTE, he stated he didn’t tell the applicant but that people who were with him told them and that S’s wife was also in LTTE; the applicant was unable to say what S’s wife did either.

The applicant stated later in his interview that after he had finished working for DDG, he was at home and S stayed at the applicant’s home because he had been informed on by some people around him as ex-LTTE so he came to the house to stay. He claimed during that time S was taken by the SLA. He claimed that the following day, the SLA came and asked for him (the applicant) and when he produced his DDG ID card, the SLA stated the company had closed and the applicant would be in trouble if he produced the card again. The applicant claimed the next day, S went to Colombo and is currently living in Qatar.

27    At [17] the Authority rejected the appellant’s claims regarding S’s involvement in the LTTE:

Country of origin information indicates that there is a Jaffna-based newspaper in Sri Lanka called Uthayan (or Uthanyan according to one source) but there is no information before me to suggest that it associated with the LTTE although it is described as a Tamil newspaper. While I accept that S has or had some kind of head injury, there is no evidence before me, apart from the applicant’s assertion, that is injury resulted from his being an LTTE fighter. DFAT advises that towards the end of the conflict a large number of LTTE members were arrested and detained; the majority of those that were arrested were sent to Government-run rehabilitation camps. However, the applicant has not provided any evidence that S was arrested and underwent rehabilitation prior to his departure in 2012. His description of S’s employment and subsequent role with the LTTE was vague, frequently confused and lacking detail; he provided inconsistent accounts as to when S was involved with the LTTE and made no mention of S’s (or J’s) involvement with the LTTE in his earlier interview with the Department. I also note his evidence that the day after being taken from home by the SLA, S travelled to Colombo and does not appear at any later time to have come to the attention of the authorities. There is no evidence before me that S travelled illegally to Qatar. I find that he was permitted to leave Sri Lanka legally. The fact that he was able to do so undermines the applicant’s claim that he was a person of interest to the authorities. In summary, I accept that S worked for a Sri Lankan newspaper during the war but on the information before me I am not satisfied that he was an active member of the LTTE, that he fought and came home with a head injury. On the basis that being randomly questioned and observed by the military has been a feature of life for many in the north and east of Sri Lanka, I accept that S may have been questioned by the authorities one day in 2012 before being released. However, the circumstances of this suggest it was routine monitoring only which does not appear to have had any ongoing consequences either for S or the applicant and his family.

(Emphasis added.)

28    Insofar as it concerns the finding regarding S, Ground 1 of the appeal centres on the highlighted passage where the Authority rejected the appellant’s claim that S was permitted by the Sri Lankan authorities to travel illegally to Qatar, which the Authority said undermined the appellant’s claim that S was a person of interest to the authorities.

29    The appellant has the onus to establish that there is no evidence for this finding. It is a stringent test, and if there is any evidence to support it an allegation of jurisdictional error on this basis will fail. Evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker to be reasonably infer a particular matter: Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004)207 ALR 12 at [39]-[41] (Gummow and Hayne JJ).

30    Ground 1 does not however rely solely on a “no evidence” argument; it also raises the argument that the Authority’s finding that S left Sri Lanka lawfully lacked any evident and intelligible justification - an error of the kind described in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. Any evidence relied on by the Authority must be rationally and logically probative of the finding it is said to support. The factual findings by the Authority must have a rational, logical basis, or an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ).

31    It is, however, not enough for the question of fact to be one on which reasonable minds might come to a different conclusion: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] (Robertson J). To establish jurisdictional error based on irrational or illogical fact-finding the finding must be one at which no rational or logical decision-maker could arrive on the same evidence.

32    The Minister submitted that the Authority’s finding that S left Sri Lanka lawfully was open on the evidence and was also supported by the delegate’s similar evaluation of the appellant’s claims.

33    I disagree. In my view the Authority’s finding that S was permitted to leave Sri Lanka legally does not rationally or logically follow from the finding in the preceding sentence that there is “no evidence before me that S travelled illegally to Qatar”. I consider there is no evident or intelligible justification for it. At its highest any lack of evidence about the alleged unlawful departure by S may mean that the Authority could not make a positive finding that S left illegally; it does not support a positive conclusion that he did not leave unlawfully. The Authority’s reasoning in this regard recalls the well-known aphorism that an absence of evidence is not evidence of absence.

34    The Authority’s reasoning was irrational or legally unreasonable for this reason, and even more so because it is difficult to imagine what evidence the Authority could reasonably expect to exist in respect of a Tamil allegedly fleeing Sri Lanka in a time of civil conflict: the very nature of unlawful departure implies that there will be no formal documentation. Similarly it is hard to see what evidence the Authority could reasonably expect the appellant to produce in respect of the illegal departure of somebody else. The absence of evidence that S departed Sri Lanka illegally is the only matter on which the Authority expressly relied for its finding that S left Sri Lanka lawfully, and for the reasons just explained there is no evident and intelligible justification for it.

35    The Minister sought to supplement the Authority’s reasons by reference to other material, and to rely on the delegate’s reference to an article from The Gulf Times on 29 January 2015 headed “Qatar a favourite destination for Sri Lankan workers, say officials” (Qatar article) about Sri Lankans working in Qatar, and to a report by the Australian Department of Foreign Affairs and Trade dated 18 December 2015 (DFAT report). The Minister sought to use this material to show that the Authority’s finding that S had left Sri Lanka lawfully had a rational and probative basis.

36    Broadly, the Minister argued that:

(a)    the delegate’s reasons stated that “Country information also indicates that many Sri Lankans have departed the country to Qatar for work purposes”, with a footnote to the Qatar article. The article quoted officials as saying that the recruitment process for Qatar used to be protracted and required a lot of paperwork, including police reports and medical tests, but it had become easier and recruitment agents could get Qatar visas for Sri Lankan workers easily since it only required a passport to start processing the visa;

(b)    the delegate’s reasons also referred to the DFAT report. Although the delegate’s reasons did not refer to this particular part, the report stated that more than 250,000 Sri Lankans left Sri Lanka each year to seek employment abroad. It also said that in 2013 more than 2 million Sri Lankans were working abroad seeking higher wages and more reliable work, mostly as unskilled and semi-skilled labour in the Middle East; and

(c)    the Minister submitted that the existence of the Qatar visa program, the fact that it only required a passport, and its apparent popularity as a working destination for Sri Lankans, in combination with the appellant’s evidence that his brother “fled to Qatar” rather than saying specifically that he left illegally, supported an inference that S left the country legally to work in Qatar, not because he feared harm from Sri Lankan authorities.

37    The Qatar article and the DFAT report were not included in the materials before the Court on appeal, and it is unclear whether or not they were in the materials provided to the Authority by the Secretary pursuant to s 473CB of the Act. In the hearing there was a dispute as to which of the parties was required to adduce the Qatar article if was to be relied on. The appellant contended that there was no logical or probative evidence that S left for Qatar legally and argued that it was unclear that the article was part of the record provided to the Authority, given it was only footnoted. The Minister submitted that the appellant alleged that there was no evidence for the relevant finding, and it was his onus to put the record before the Court to establish that allegation. On the assumption, favourable to the Minister who sought to rely on the material, that the Qatar article and the DFAT Report were before the Authority, I decided it was appropriate to receive this material into evidence in the appeal.

38    In my view the Qatar article and the DFAT report provide little or no logical or rational support for the Authority’s finding that S left Sri Lanka legally. First, it is significant that the article was published in 2015, and S fled to Qatar in 2012. It is not clear that an article stating that Qatar is a popular work destination for Sri Lankans in 2015 has much – or any – logical bearing on what the situation was three years prior, particularly when the article quotes an official in a Colombo-based recruitment company as saying that the recruitment process for Qatar was easy as at 2015 but was previously “very protracted since it required a lot of paperwork, including police reports, medical tests, etc”. Second, while the Qatar article and the DFAT report indicate that many Sri Lankans legally work overseas in an effort to obtain higher wages and more secure work, that does not show or even indicate that was the reason S fled Sri Lanka, let alone that he left legally.

39    The Minister did not argue that the balance of the Authority’s reasoning at [17] provided an independent basis for the Authority’s conclusion that S departed Sri Lanka legally. In my view there appear to be further errors in the balance of the paragraph but it is unnecessary to go to those matters.

40    I am satisfied that the Authority erred in finding that S departed Sri Lanka lawfully. The Authority expressly said that the finding that S lawfully departed Sri Lanka undermined the appellant's claim that S was a person of interest to the Sri Lankan authorities. The error was not saved by the Authority’s approach to the balance of the appellant’s evidence regarding S in the rest of [17]. The erroneous finding was material to the Authority’s decision when it accepted and relied upon the UNHCR Guidelines, which guidelines treat persons from Sri Lanka who are family members of or closely related to former LTTE combatants or supporters as having an adverse profile with Sri Lankan authorities.

41    There is a realistic prospect that, had the Authority not erroneously found that S departed from Sri Lanka legally, it would not have concluded that S was not involved in the LTTE, and that the Sri Lankan authorities had no adverse interest in the appellant. The Authority may have reached a different conclusion on the appellant's visa application: Hossain v Minister for Immigration and Border Protection [2018] FCA 24; (2018) 92 ALJR 780 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. In my view the Authority’s error is jurisdictional.

The Authority’s findings about J

42    The Authority’s reason for rejecting the appellant’s claim that J was in the LTTE and killed in battle is essentially that the document the appellant said was concocted by his father to misdirect the Sri Lankan authorities was too believable to be anything other than true. The Authority said at [13]-[14]:

Having considered the applicant’s claims and the evidence provided in support, I do not accept that J was a fighter in the LTTE and that he was killed in the battle in [redacted]. While I accept that it is plausible that a person may arrange for false documents to be issued to avoid the attention of the authorities, the details in one of the documents provided by the applicant go beyond what, in my view, would be necessary to convince the authorities about the circumstances of J’s death. The details set out in the document called “Copy of the Complaint” lead me to conclude that the applicant’s father’s recounting of the circumstances of his son’s death were written from the point of view of somebody who witnessed his son’s wounded body and who heard his last words. The delegate asked the translator to read the information printed from the website and provided to the delegate and the delegate noted that the date of birth was different to what which was originally given for J’s birth.

It was reported in 2008 that civilians made up more than 90 per cent of the people killed by shelling and aerial bombardment of the government forces and suicide attacks of the LTTE. I accept the documents provided in relation to J’s death on their face value and find that the cause of death of J in 1997 was a shell attack in his home area as he was going to school as the documents suggest, not that he was killed in a battle in [redacted] as an LTTE soldier. However, even if I were to accept that the documents provided by the applicant have been falsified to deflect the suspicion of the Sri Lankan authorities and that J was, in fact a member of the LTTE who was killed in battle, I note that J’s death was 20 years ago and in accordance with my findings below, his membership of the LTTE has had no ongoing consequences for the applicant and his family.

43    The Minister argued that the Authority was entitled to treat the document at face value (that is, as evidence of the facts set out) and the Authority’s reasons were cogent and an orthodox evaluation of the document by a specialised body. I do not find the Authorities reasons cogent and it is difficult to see anything in the terms of the document that led to the conclusion the Authority reached. Amongst other things, the account of J’s death does not go into a level of detail that would make it difficult to invent, a conclusion supported by the fact that the delegate accepted the appellant’s account. Having said this, in my view, the Authority’s finding was open to it and I am not persuaded that it fell into jurisdictional error in the way it addressed the appellant's claims that J was killed in battle while fighting for the LTTE.

44    On the basis of the Authority’s finding in relation to the appellant’s claim that S was involved in the LTTE it is appropriate to grant leave to the appellant to advance Ground 1 of the appeal. Further, for the reasons I explain above, I find for the appellant on this ground.

Ground 2

45    Proposed Ground 2 of the appeal is as follows:

The Authority made a jurisdictional error by failing to consider a claim of the Appellant or integer thereof, or not engaging in proper, genuine and realistic consideration of the Appellant’s case.

(d)    the Appellant claimed at AB 63 that the Sri Lankan Army may want to know or have drawings and maps of sites of mine clearance.

(e)    the Authority referred to this claim at AB 149 [5].

(f)    the finding of the Authority at AB 154 [24] was that the Appellant had worked for the Danish Demining Group (DDG) from 2005 to 2012.

(g)    the finding of the Authority at AB 155 [25] that it was not satisfied that there was any risk to the applicant of harm associated with his employment with the DDG.

(h)    the Authority did not consider or engage in an active intellectual process directed at the claim of the Appellant as to whether [the] Sri Lankan Army would seek information from him as to mine clearance and the manner in which the Army would do so in the context of rejecting the Appellant’s risk of harm in relation to the DDG.

46    It is established that a decision-maker may fall into jurisdictional error if it fails to consider a person’s claim or an integer thereof which clearly emerges from the materials and is based on established facts: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [118]. It is also established say that a decision-maker may fall into jurisdictional error where it does not engage in an active intellectual process directed at a person’s claims: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45].

47    The appellant submitted that it was part of his case that, if returned to Sri Lanka, he feared serious harm as a result of his work with DDG. The Authority accepted that he had worked for the DDG and that a driver for DDG was killed in Jaffna in 2007, but it did not accept that the appellant would face repercussions as a result of his work for DDG. The appellant contended that the Authority’s findings showed a failure to consider or to engage in an active intellectual process directed at his claim to be of interest to the Sri Lankan Army because of his knowledge of mine clearance sites, or the implications for the appellant as a person with such knowledge.

48    I do not consider this ground has sufficient merit to justify a grant of leave to advance the proposed new ground.

49    The Authority’s reasons made it tolerably clear that it understood this aspect of the appellant’s claims. It considered the claim at [23] to [25] of its reasons and said (at [25]):

….While I accept that a DDG staff driver was among those humanitarian workers killed in the same period that the applicant was employed by DDG and that others associated with DDG may have gone missing, it is not clear how, eight years after the end of the war and four years after the applicant ceased working with that NGO, this incident would have ongoing repercussions for the applicant. In light of this and my findings below, I am not satisfied that there is any risk to the applicant of harm associated with his employment with the DDG group.

50    Essentially, the Authority said that the effluxion of time since cessation of the appellant’s employment with the DDG and the death and disappearance of other DDG workers meant it was not satisfied that the appellant’s employment or association with DDG would mean he faced a risk of harm if returned to Sri Lanka. The Authority addressed the appellant's claim in this regard and I am not persuaded that in the circumstances the Authority was required to go any further in its consideration of the claim that it did. The Court must be cautious to avoid sliding into impermissible merits review when considering the requirement to give proper, genuine and realistic consideration to an applicant's claims: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [29]-[36] (the Court).

Conclusion

51    It is appropriate to make orders to set aside the orders of the Federal Circuit Court made on 7 May 2018, and to require the Authority to re-determine the appellant’s application according to law. I will order the Minister to pay the appellant’s costs of the appeal and, ordinarily, I would also order that the Minister pay the costs of the hearing below. However the appeal was only successful on a ground not advanced below and I consider the better course to be to set aside the costs order made below in favour of the Minister and make no order as to the costs of that proceeding. However, I grant liberty to the parties to make submissions within seven days in relation to costs should either of them contend a different result is appropriate.

Associate:

Dated:    3 July 2019