FEDERAL COURT OF AUSTRALIA

CUP16 v Minister for Immigration and Border Protection [2019] FCA 1120

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 made by the Federal Circuit Court of Australia on 20 October 2017 be set aside and in its place it be ordered that the decision of the Immigration Assessment Authority made on 5 September 2016 is set aside and the matter be remitted to the Immigration Assessment Authority (differently constituted) for determination in accordance with law.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

FARRELL J:

INTRODUCTION

1    The appellant (or CUP16) is a Sri Lankan national from Trincomalee in the Eastern Province of Sri Lanka and of Tamil ethnicity. He arrived at Christmas Island in September 2012 as an unauthorised maritime arrival.

2    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): CUP16 v Minister for Immigration and Border Protection [2017] FCCA 2438. The FCCA Judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (or IAA) to affirm a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven enterprise (Class XE, subclass 790) visa (SHEV).

Appellant’s factual claims

3    In a statutory declaration made on 6 September 2013 and a further statement made on 18 January 2016, both of which were before the delegate, CUP16 claimed to fear that he will be subjected to serious harm, including death by Sri Lankan authorities, namely the Sri Lankan Army (SLA) and Sri Lanka’s Criminal Investigation Department (CID) due to his connection to the Liberation Tigers of Tamil Eelam (LTTE); an imputed pro-LTTE political opinion due to his uncle’s involvement with the LTTE; his status as a young Tamil male from Sri Lanka’s Eastern Province; and his status as a failed asylum seeker who departed Sri Lanka illegally.

4    The Authority summarised CUP16’s factual claims in its decision record (or DR) at DR[11]-[14] and [19] (as written, footnotes removed):

11.     The applicant claims that shortly after he was born his family were displaced by the war to India for a few months. In 1993 he and his family returned to Trincomalee in Sri Lanka but the security situation remained unsafe and insecure. When he was about 14 years old in late 2006, during the school holidays, he went to spend time with his paternal uncle who lived in [redacted], Vanni, Northern Province, a LTTE controlled area. He stayed with his uncle and his uncle's family for about one or two months and returned to Trincomalee in early 2007. At the SHEV interview he said his uncle lived all his life in [redacted], got married there, but in 2009 the authorities started looking for his uncle and he doesn't know the reason for their interest in his uncle. He speculated that maybe his uncle was suspected of some involvement in the LTTE. He and his family have not been in touch with his uncle since he went missing at the end of the war in 2009. His uncle's wife and child are also deceased. I accept the applicant's evidence on these points.

12.     The applicant claims that sometime in 2010, when he was 18 years old, officers from the SLA and CID approached him in while he was playing cricket in the playground and ordered him into their autorickshaw. He was blindfolded and taken to their camp. He was ordered to tell the truth and asked why he had visited his uncle in Vanni in 2006, what his uncle did, if he had received any training and showed him photos and asked him if he knew any of the people in the photos. He explained about his holiday visit and was accused of lying. He was threatened with their rifles, held for about three hours and released. At the SHEV interview he said that he was slapped on his cheek; that a gun was pointed at his head; and that they released him on condition he not leave the country or province and that he report back whenever they call him. He explained he was studying and the officers dropped him off at the place they picked him up. He says when he got home and told his mum what happened she became scared that it wasn't safe for him at home. He stopped sleeping at home to avoid the SLA and CID and slept at different times at his maternal aunt's house and his maternal uncle's house in Trincomalee.

13.     He says that approximately a year after that incident, around 22 August 2011, he and his friends and family were going on a trip to [redacted] in Trincomalee for a picnic when they were stopped by men in civilian clothing who said they were from the CID and they took him to the CID camp for questioning. The officers asked for details about his uncle and he told them since the war ended he didn't know where his uncle was and that his uncle's wife was deceased. They asked him about what training he had received. They accused him of lying and he explained he had only visited his uncle once and after that lost contact with him. They threatened to kill him if he did not tell the truth. He told them he was studying. After about two, three or four hours the officers took down his contact details, said they would continue the interrogation another time and released him. The next day the officers called him and issued him with a certificate attesting to his detention and interrogation. He supplied a copy of the certificate which notes, among other things, "[the applicant] who was arrested at [redacted] Area on suspicion and made investigation regarding him, and due to no offences against him, he was released". After this incident he continued to sleep at his uncle's and aunt's houses and stopped visiting his family home.

14.     He finished school in 2011 after completing his A-levels. He says as he could not use the excuse of being a student anymore, he became scared for his safety. He obtained a passport on 9 June 2011. He wanted to flee for India but he heard people were being arrested at the airport. He decided to remain in hiding with his aunt and uncle and did not work. He heard of a smuggler arranging a boat to Australia and fled Sri Lanka on [redacted] September 2012.

…

Incidents after his departure

19.     The applicant did not claim in his 2013 statement that the authorities had made any enquiries about him after he left Sri Lanka. In his 2016 statement he said that since preparing his 2013 statement, he was told by his mother that the authorities continued to come to their home, in 2013 and 2014, to enquire about his whereabouts and his mother told them he was in the Middle East working; and a friend from the cricket club told him that men were asking after him in the last year (2015). At the SHEV interview he said the authorities visited his mother three or four times previously and in the last month, just before the interview (approximately April 2016) they had visited her again to ask about him and as a result his parents don't live at home and move around out of fear; and his friends were too scared to play cricket at the playground after the authorities asked about him.

Fast track reviewable decision

5    The delegate’s decision was a “fast track reviewable decision” as defined in s 473BB of the Migration Act 1958 (Cth).

6    Fast track reviewable decisions must be referred to the IAA for review (s 473CA). The IAA must generally conduct the review on the papers referred to it by the Secretary of the Department (under s 473CB) without accepting or requesting new information and without interviewing the referred applicant (s 473DB). However, the IAA may get and consider certain “new information” (as defined in s 473DC) only as provided in the regime in Subdiv C of Div 3 of Part 7AA and, in particular, s 473DD.

Information given to the Authority by the appellant’s migration agent

7    The appellant’s migration agent provided written submissions and documents to the Authority on 15 and 30 August 2016. To the extent that the submissions dated 15 August 2016 (15 August submissions) discussed evidence which was before the delegate and responded to the delegate’s reasons and findings, the Authority considered that it was not “new information” and the Authority had regard to it: DR[4]. The Authority found that none of the other documents were before the delegate and they are therefore “new information”: DR[3].

8    The documents included:

(1)    News articles and a report. At DR[5], the Authority found that all but one of the news articles and the report predated the delegate’s decision, and the Authority found that it was not satisfied that it should consider any of those documents because s 473DD(b) was not satisfied in relation to any of them.

(2)    A 1999 personnel file note from the Sri Lankan police (and translation dated 5 August 2016) indicating that CUP16’s uncle was promoted to “chief policeman” in the LTTE police. The appellant explained that he was only recently able to convince his uncle’s family to provide it because they were concerned about getting into trouble with the Sri Lankan authorities. At DR[6] the Authority said that it did not accept that waiting to obtain “a piece of documentary evidence that you believes support a known but previously undisclosed claim amounts to exceptional circumstances. The Authority was not satisfied that there were exceptional circumstances which would justify its consideration of the 1999 personnel file note (within s 473DD(a)).

(3)    Two letters dated 4 August 2016, one from a parliamentarian and another from a cricketing friend. At DR[7], the Authority said that it was not satisfied that s 473DD(b) was made out in relation to the letter from a parliamentarian. The Authority found that the letter from the “cricketing friend” dealt with matters which pre-dated the delegate’s decision even though it post-dated the delegate’s decision and the statement in it that the appellant “had to leave the country during the war time due to threats against his life by unknown persons” was entirely inconsistent with CUP16’s protection claims. The Authority was not satisfied that “exceptional circumstances” existed which would justify its consideration.

(4)    A Sri Lankan police message form dated 29 July 2016 (and English translation) which purported to require CUP16 to attend an inquiry on 2 August 2016. At DR[8], the Authority found that, while the police message form post-dated the delegate’s decision, the appellant claimed that the Sri Lankan authorities knew that he was overseas, he had previously been picked up in the street (not asked to attend to make a statement by a form left at his family’s home) and, if the form was genuine, it had no probative value because of the vagueness of its contents. Accordingly, the Authority found that it was not satisfied that there were “exceptional circumstances” which justified its consideration of the police message form.

Authority’s conclusions

9    Having considered the written statements of September 2013 and January 2016 and his evidence given to the delegate, the Authority found the appellant’s evidence to be generally consistent, consistent with country information and, subject to reservations, that he was a “somewhat credible witness”: DR[16].

10    The Authority accepted CUP16’s evidence on the following points: in 2009 the Sri Lankan authorities started looking for CUP16’s uncle and he did not know the reason for their interest in his uncle; he speculated that maybe his uncle was suspected of some involvement in the LTTE; he and his family have not been in touch with his uncle since he went missing at the end of the war in 2009; his uncle’s wife and child are also deceased: DR[11]. However, the Authority found the evidence given for the first time at the SHEV interview that he been slapped and threatened with death to be exaggerated and did not accept it: DR[17].

11    The Authority found that CUP16 had not been questioned by the authorities after August 2011 and before he left Sri Lanka in September 2012 because they no longer had any adverse interest in him: DR[18]. After the August 2011 detention, the appellant was given a certificate attesting (effectively) to his release after being cleared of suspicion: DR[20]. The Authority did not accept that the Sri Lankan authorities had made inquiries about him since his departure: DR[21].

12    The Authority found that, in circumstances where the appellant had no links to the LTTE and he last saw his uncle in 2009 after which his uncle disappeared, and despite coming from a previously LTTE controlled area, the appellant did not have a profile which suggests that he was at risk or that the authorities would have any adverse interest in him: DR [36], [37]. Based on country information, the Authority found that there was not a real chance that the appellant would, as a young Tamil male from the East or as an illegal departee or failed asylum seeker, face a real chance of serious harm upon his return to Sri Lanka at that time or in the reasonably foreseeable future: DR [32], [46], [53].

APPEAL

13    The appellant relied on a single ground of appeal: that the FCCA Judge “committed a legal error dismissing” the appellant’s case and that his Honour “failed to consider all of the grounds that was raised and failed to consider all arguments put by” his representative. In the particulars to the ground, the appellant noted that the reasons for dismissing his application had not yet been published and that he would provide grounds once they had been. No further grounds were provided after the FCCA Judge published his reasons.

14    While the appellant had been represented by counsel in the FCCA proceedings, he was not represented on the appeal until after the hearing. He did not file written submissions before the hearing and he appeared in person. He accepted that the Court should understand the ground of his appeal to be that FCCA Judge failed to consider adequately the grounds that were raised before him.

15    The Minister appeared by counsel and filed written submissions. The Minister submitted that, in the absence of any further grounds or particulars being provided, there was no case to answer on appeal.

16    Following the hearing, the Court sent an email to the parties raising a number of queries. In response, the appellant filed submissions which had been prepared by the counsel who had represented him in the FCCA proceedings and the Minister filed supplementary submissions.

17    There were six grounds of judicial review in the FCCA proceedings. Having regard to the nature of the ground of appeal, it is useful to consider the appeal by reference to those grounds.

GROUND 1

18    The first ground of review in the FCCA was that “[t]he Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (DR[3]-[8]), failed to ask correct questions and/or asked incorrect questions and irrational/illogical and /or denied procedural fairness”.

19    The “particulars” to this ground focussed on the way the Authority dealt with information provided to it by CUP16’s migration agent (who appears to have been legally qualified) having regard to s 473DD of the Migration Act. It is useful to set out the particulars in full (as written):

 1.1    The Authority ignored the information.

 1.2    The Authority failed to take into account the information.

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

1.4    The Authority failed to consider whether the section s 473DD was applicable to the circumstances.

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

1.6    The claim the Applicant’s uncle was involved with the LTTE was critical claim in respect of which procedural fairness was denied.

1.7    There was potential risk/danger to others and closer relatives of the uncle which was not properly considered.

 1.8    There were exceptional circumstances which was ignored.

 1.9    The Authority committed jurisdictional error.

FCCA Judge’s reasons

20    The FCCA Judge (at J[14]-[15]) considered the statutory regime for review of fast track reviewable decisions and (at J[16]-[17]) noted the definition of “new information” in s 473DC(1) and the circumstances in which the Authority may consider any “new information” under s 473DD and set out those provisions in full. It is useful to set out ss 473CD and 473DD which provide as follows:

473DC Getting New information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD Considering new information in exceptional circumstances

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

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

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

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

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

21    At J[18], the FCCA Judge noted that the Authority included in its reasons (at DR[2]-[8]) a section dealing with the information that was before it and that it referred to the information provided by CUP16’s migration agent. His Honour treated the focus of this ground as being DR[6] which deals with information concerning CUP16’s uncle, and set it out in full. DR[6] is set out at [30(3)] below.

22    The FCCA Judge found (at J[19]) that, in light of the statutory scheme, CUP16’s first ground can be understood to be:

(1)    In considering whether there are exceptional circumstances to justify considering the claim concerning CUP16’s uncle, the Authority ought to have, but did not consider the “circumstances of fear from family members”; and

(2)    The Authority ought to have considered the documents sent to it by CUP16’s migration agent because they had a direct bearing on the claims.

23    The FCCA Judge found (at J[21]) that the mere fact that documents sent to the Authority have a direct bearing on CUP16’s claims does not necessarily mean that the Authority was bound to consider them. His Honour found that, if the documents comprise “new information” within the meaning of s 473DC, the Authority must not consider those documents except in accordance with s 473DD and that the component of judicial review ground 1 identified at [22(2)] above ignores those statutory provisions.

24    The FCCA Judge found (at J[22]) that the component of the first ground of judicial review identified at [22(1)] above must be also rejected in light of the statutory scheme and the facts of the case. His Honour noted (at J[23]-[24]) that there are two parts of s 473DD which must be satisfied before the Authority may consider new information: paragraph (a) dealing with “exceptional circumstances”, and paragraph (b) dealing with information which “was not, and could not have been” given to the Minister before his decision was made, or, which is “credible personal information” which was not previously known and if it had been known it may have affected the Minister’s consideration of CUP16’s claims.

25    Noting that the Authority only addressed the “exceptional circumstances” element of s 473DD, the FCCA Judge found (at J[25]) that the Authority expressly referred to CUP16’s submission that he had only recently been able to persuade his uncle’s family to provide the 1999 personnel file note as they were concerned about getting into trouble with the Sri Lankan authorities so that it could not be said that the Authority overlooked it in connection with its consideration of s 473DD.

26    It is useful to set out the FCCA Judge’s reasons at J[26] in full (emphasis added):

The fact is, however, that the IAA arrived at its conclusion by focussing on the underlying information, namely: the uncle’s position in the LTTE police, rather than the document said to support the existence of that information. It was the applicant’s failure to raise a claim of which he was aware even without supporting documentation that led the IAA not to be satisfied that there were exceptional circumstances justifying consideration of the information.

Oral submissions at the hearing

27    The appellant made oral submissions, many of which went to the merit of his claims. Relevantly to this ground, he said that at the “initial interview” with the Department he was not able to put forward all of his claims because of his mental state and fear for his safety and the safety of his family. He was not able to get “some evidences” as well. He put forward the “further evidences” in the representations made to the Authority. He said that his central claim concerned his link with the LTTE through his uncle. The appellant appeared to suggest that his uncle was involved in intelligence for the LTTE. He said that when a person works with the LTTE, they did not normally reveal their links. He said that his family did not know that his uncle worked with the LTTE when he went to stay with his uncle in 2006. It was only later, after the end of the war in 2010/2011, that “everyone” came to know that his uncle had links to “the movement”.

28    The appellant also stated his more general concern (which did not appear to relate to any particular ground although it is consonant with ground 1 absent the particulars) that the Authority did not consider the documentary evidence his migration agent provided to the Authority (see [7] above). In particular, he referred to the Authority’s finding that there had been no problems (in Sri Lanka) since he came to Australia, but he had provided the Authority with the police message form which asked him to report for an inquiry.

29    Counsel for the Minister relied on the High Court’s decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 (Plaintiff M174/2016) at [29], in which Gageler, Keane and Nettle JJ noted that the precondition in s 473DD(a) was that the Authority must be satisfied that there are exceptional circumstances which justify its consideration of new information. Counsel confirmed that, in his view, the new material was that the appellant’s uncle was associated with the LTTE police specifically, rather than a vague association with the LTTE. Counsel submitted that the FCCA Judge’s reasoning was consistent with Plaintiff M174/2016 at [65] and [75].

Court’s email to the parties

30    In an email sent to the parties shortly after the hearing, the Court referred to the following material from the delegate’s decision record, the 15 August submissions and DR[6]:

(1)    From the delegate’s decision record at [9]-[10] (as written, emphasis added):

The applicant was asked at interview why the Sri Lankan authorities are still interested in monitoring and locating him considering he was already detained and released twice by Sri Lankan authorities. The applicant responded he believes Sri Lankan authorities are still pursuing him in regards to his uncle’s involvement with the LTTE and by extension his imputed LTTE association. I find this explanation unconvincing. At interview the applicant was asked if he or any of his family members were ever involved in any LTTE or Tamil separatism activity or political activity of any kind. The applicant responded he hasn’t engaged in demonstrations against the Sri Lankan government and is not politically active and has never been involved in any capacity with the LTTE. The applicant was asked regarding his uncle’s involvement with the LTTE. The applicant explained he has no knowledge of his uncle’s involvement with the LTTE but assumed that it was possible given he lived in an LTTE controlled area during the Sri Lankan civil war. The applicant stated that the only contact he had with his uncle was in 2006 when he stayed on his uncle’s farm for approximately three months. During this time the applicant assisted his uncle farming and never experienced or witnessed any form of LTTE activity. I do not accept the applicant would be subject to targeting and monitoring because of his uncle’s connection, if any, with the LTTE. Country information indicates that close relatives of former LTTE members, particularly, high profile members, who are wanted by Sri Lankan authorities are likely to be subject to monitoring.

Consequently, I find the applicant was of no particular adverse interest to the Sri Lankan authorities including the CID or to anyone else prior the applicant’s departure from Sri Lanka to Australia.

(2)    CUP16’s migration agent said the following in the 15 August submissions (as written, emphasis added):

Imputed political opinion & Uncle’s involvement with the LTTE.

The applicant disagrees with this finding of the delegate that the SL authorities would not regard him as a supporter or sympathiser of the LTTE. The applicant strongly believes that he would be perceived to be someone linked to the LTTE by virtue of his uncle’s involvement in the LTTE. As a result, he fears that he will be detained, interrogated, tortured, abused and/or killed by the SL authorities namely the CID. To further support the applicant’s claim, he had mentioned to the DIBP interview that he was detained and interrogated on several occasions by the CID. The interrogation focused on his uncle’s involvement in the LTTE and if he had any new information regarding his uncle’s whereabouts. The delegate at paragraph 8 states that: “The applicant responded in some detail in regard to attending SLA and CID camps for questioning and I find that all the adverse interactions that the applicant claims to have had with the Sri Lankan authorities are generally credible accounts.……I am prepared to give the applicant the benefit of the doubt and accept that he was detained and interrogated by the Sri Lankan authorities in 2010 and 2011 as he is described above”.

At paragraph 11, the delegate states that “As described above I accept that the applicant was questioned regarding his uncle however, I do not accept this would contribute to the applicant as having a profile of interest on return to Sri Lanka. Country information distinguishes between high-profile and low-profile former LTTE associates with high profile comprising of LTTE’s former leadership. I find the applicant has no political profile and has no connection to the LTTE.”

At paragraph 4, of the decision the delegate states that “Overall, I am satisfied that the information provided by the applicant has remained highly consistent and detailed throughout the various stages of the assessment process.”

During the interview when the applicant was questioned about his uncle’s position in the LTTE, in the first instance the applicant stated in Tamil that “maybe he was in a higher position” but this was not translated accurately in English to the delegate. Again the delegate asked for a second time why the SL authorities were interested in his stay with his uncle 4 years ago. The applicant said that “I do suspect uncle had a high position/prominent position in the LTTE.” However it is important to point out that at the interview stage the applicant did not have any documentary evidence to convince the delegate that his uncle was possibly involved and had a high position in the LTTE.

The applicant now instructs us that he has obtained a document from his uncle family indicating that the uncle was a chief policeman in the LTTE (translated letter in English is attached). The applicant informs us that he was only recently able to get this letter after he tried hard to convince his uncle’s family to help him to secure some form of evidence to support his claim. The uncle’s family were reluctant to give him this letter when he made enquiries with the family. They were afraid that they might have to face serious repercussions from the SL authorities if it was known to them. We submit that this information is credible personal information which was not previously known and may have affected the delegate’s consideration of the applicant’s claims, had it been known. We respectfully request the presiding reviewer to consider this new information as set out in section 473DD of the Migration Act.

…

  The Court will refer to the part of this extract emphasised in bold as the quoted material from the 15 August submissions.

(3)    DR[6] is as follows (as written, emphasis added):

The applicant submits that he did not have any documentary evidence to put to the delegate at the SHEV interview that his uncle was possibly involved and had a high position in the Liberation Tigers of Tamil Eelam (LTTE) but has now supplied the 1999 police personnel file note. He says he was only recently able to convince his uncle's family to provide the file note as they were concerned about getting in to trouble with the Sri Lankan authorities. At the SHEV interview he said he suspected, but didn't know, that his uncle may have been in the LTTE and he suspected possibly a high position. What the applicant has not addressed is why he did not and could not put the information about his uncle being in the LTTE police to the delegate without documentary evidence. I do not accept that waiting to obtain a piece of documentary evidence that you believe support a known but previously undisclosed claim amounts to exceptional circumstances. I am not satisfied there are exceptional circumstances that justify considering the 1999 police personnel file note (and English translation) or the claim that the applicant's uncle was in the LTTE police.

31    The parties were invited to comment on the following issues:

First issue: While the Authority appears to have taken the statements in the quoted material from the 15 August submissions concerning “new information” to relate only to the 1999 personnel file note in support of the claim that the appellant’s uncle was in the LTTE police, on a proper reading, should it be taken to refer to all of the quoted material?

Second issue: It is not plain from the quoted material that what was being asserted was that the appellant knew his uncle had been in the LTTE police at the time of the SHEV interview with the delegate. Was the Authority’s decision-making based on that assumption flawed, and if so, did it reveal jurisdictional error? The Court noted that the FCCA Judge’s reasons at J[26] appeared to proceed within that framework in his Honour’s decision to dismiss the first ground of review.

Third issue: Should the Court understand DR[6] as indicating that the Authority did accept that the appellant put to the delegate at the SHEV interview that “his uncle was possibly involved and had a high position in the LTTE”. If so, should the Court take the view that that information was not “new information”? If so, should that information have been taken into account by the Authority when making its decision? If it should, there is nothing in the Authority’s decision record after DR[6] which deals with that claim. Does this reveal jurisdictional error?

Fourth issue: Alternatively, if the claim that “his uncle was possibly involved and had a high position in the LTTE” should be regarded as “new information” on what basis do you say that? If it is “new information”, should the Authority have identified it as such? Is the Court to assume that the Authority accepted that translation errors at the SHEV interview with the delegate were sufficient to meet the requirement of s 473DD? If all of that could be assumed, is jurisdictional error revealed by the apparent failure to deal with that claim after DR[6] of the reasons?

Fifth issue: What, if any, bearing do the submissions made by the appellant at the hearing have on any of those matters?

Appellant’s supplementary submissions prepared by counsel

32    As noted above, counsel who had represented the appellant in the FCCA proceedings prepared written submissions in response to the Court’s email. As the Court understands them, those submissions are, in substance, as follows.

33    The appellant relied on Plaintiff M174/2016 at [29]-[34] for the proposition that the High Court held that the Authority must fully engage with the issue of exceptional circumstances before considering new information. In Plaintiff M174/2016 at [29]-[34], Gageler, Keane and Nettle JJ said (footnotes omitted):

29    The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

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

31    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

32    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.

33    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.

34    Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.

34    In relation to the first issue, counsel for the appellant submitted that:

(1)    On a proper reading, the quoted material from the 15 August submissions did not relate only to the 1999 personnel file note: the appellant’s migration agent was said to have raised “the lack of proper engagement with matters”, which the Court takes to mean the submission that the appellant told the delegate “maybe he [the uncle] was in higher position” and “I do suspect uncle had a high position/prominent position In the LTTE” (untranslated statements).

(2)    The appellant also raised other claims in the 15 August submissions. Counsel specifically identified the claim which was based on the police message form dated 29 July 2016 which required the appellant to appear before an inquiry on 2 August 2016 in Sri Lanka. Counsel submitted that, on a proper reading, the Authority did not deal with that claim.

(3)    The Authority did not consider all of the material put before the Authority by the appellant’s migration agent. Alternatively, the inference is open that “the Authority considered the submissions and adopted it but did not provide reasons”, but “it is not open to conclude that the Authority considered it and rejected it”. The Authority’s consideration was flawed.

35    In relation to the second issue, counsel for the appellant submitted that:

(1)    The appellant’s migration agent did not assert (in the quoted material from the 15 August submissions) that the appellant knew of his uncle’s role when he gave evidence at the SHEV interview. The migration agent had “gone to some trouble to state in most cogent terms (AB 110.5) there has been suspicion only by” the appellant. (The Court takes the reference to AB 110.5 to be a reference to the first paragraph of the quoted material.) The Authority failed to give realistic consideration and properly engage with the migration agent’s submissions.

(2)    The Authority misapprehended the appellant’s claim and thereby fell into error because it proceeded on the flawed assumption that the appellant actually knew that his uncle was a high ranking LTTE officer, but the appellant accurately stated his claim to the delegate as set out in the quoted material from the 15 August submissions. The Authority proceeded on the basis that the appellant could have, but did not, put the information before the delegate. The Authority misapprehended the appellant’s claim that he only suspected his uncle’s role in the LTTE police: “The claim was put to the delegate and that is all the appellant could have done and has clearly stated this to the delegate”.

(3)    The position of the appellant’s uncle in the LTTE police “should not be brushed aside as wrong finding of facts”.

(4)    The FCCA Judge’s reasons at J[26] proceed on the basis that the appellant’s failure to raise a claim of which he was aware resulted in the Authority’s rejection of consideration of the “new information”, but no such claim was made. It would be irrational and illogical or unreasonable to say that the appellant could have stated (at the SHEV interview) that his uncle was in the LTTE police. The FCCA Judge did not address the appellant’s migration agent’s submissions in making that finding. There was no meaningful engagement by the FCCA Judge in grounds 1 and 3. The Authority dismissed claims as new information and failed to properly consider the claim that there were exceptional circumstances.

36    In relation to the third issue, counsel for the appellant submitted that:

(1)    It should be accepted that the appellant claimed to the delegate that his uncle was possibly involved in a “high position” in the LTTE police. Although the delegate made no findings, the quoted material from the 15 August submissions made it a central issue before the Authority. Implicitly, at least, the Authority accepted the claims about the uncle’s role in the LTTE.

(2)    The Authority failed to make findings on the issue of the translation error – an issue that it was required to deal with – but it should be taken to have accepted the submission that there were translation errors before the delegate. If the Authority ignored that submission, the failure to make findings on such a critical claim would amount to a failure to perform its statutory duty and jurisdictional error.

(3)    The quoted material from the 15 August submissions and the 1999 personnel file note relate to a claim made before the delegate that the appellant had a suspicion that his uncle was a “high ranking police official”. The submission of the 1999 personnel file note is not new information in the sense that the appellant had already raised the issue of “the uncle’s LTTE information”, even though the appellant had no direct knowledge that his uncle was a “high ranking LTTE police official”. The 1999 personnel file note is simply a corroborative document which the appellant could not obtain owing to the fear that his uncle’s family had previously held. Accordingly, the Authority should have considered the 1999 personnel file note because it was not “new information”.

37    The appellant’s counsel submitted that, in dismissing the matters referred to at DR[3]-[8] as “new information” the Authority failed to consider whether there were exceptional circumstances as required by s 473DD of the Migration Act.

Minister’s supplementary submissions

38    The Minister’s counsel submitted that, as none of the matters addressed in the Court’s email were put to the primary judge, leave is required to raise those matters on appeal.

39    In relation to the first issue, the Minister submitted that it is not a natural reading of the words “We submit that this information is credible personal information … section 473DD of the Migration Act” at the end of the quoted material from the 15 August submissions that they should be taken to refer to the “untranslated statements to the delegate”. Rather, they refer to the 1999 personnel file note. The references to the “alleged statements to the delegate” appear to be part of the explanation for why documentary evidence was not put before the delegate.

40    In respect of the second issue the Minister submitted that it was open to the Authority to infer from the quoted material from the 15 August submissions that the appellant knew of his uncle’s role in the LTTE police at the time of the SHEV interview The Minister relies on an extract from those submissions identified in bold below:

… However, it is important to point out that at the interview stage the applicant did not have any documentary evidence to convince the delegate that his uncle was possibly involved and had a high position in the LTTE.

The applicant now instructs us that he has obtained a document from his uncle family indicating that the uncle was a chief policeman in the LTTE (translated letter in English is attached). The applicant informs us that he was only recently able to secure some form of evidence to support his claim.

The Minister says that the quoted material did not claim that the appellant was unaware of the nature of the uncle’s “high position” with the LTTE at the time of the interview with the delegate, although it equally do not expressly claim that he was. Even if the inference drawn by the Authority was wrong, it would amount to no more than a wrong finding of fact and not an error of law. In making the proposition, the Minister relied on the following High Court authorities: Waterford v Commonwealth [1987] HCA 25; 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; 187 CLR 297 at 303; and Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at 560.

41    In relation to the third issue, the Minister submitted that the Court should not understand from DR[6] that the Authority accepted that the appellant had put to the delegate that “his uncle was possibly involved and had a high position with the LTTE” because, in context, it is apparent that the Authority was summarising the appellant’s submissions filed by his migration agent. The Minister referred to the delegate’s decision record at [9] which stated that the appellant’s oral evidence was that “he had no knowledge of his uncle’s involvement with the LTTE but assumed it was possible given he lived in an LTTE controlled area during the Sri Lankan civil war”. The Minister noted that the delegate did not refer to any claim by the appellant that his uncle had a “high position” and submitted that one would expect this to be recorded if such a claim was made at the interview.

42    In relation to the fourth issue, the Minister submitted that:

(1)    Given that the appellant specifically claimed that his uncle was a “chief policeman” and provided documentary material to corroborate that claim, it was that claim that was the relevant “new information”. It is apparent that the reference in the quoted material to the uncle having a “high position” was a reference to that information – there was no separate information that the uncle had a “high position”. That is consistent with DR[4], where the Authority said:

To the extent that the submission discusses evidence which was before the delegate and responds to the delegate’s reasoning and findings in reaching a decision, I consider this not to constitute new information and I have had regard to it.

(2)    The Authority cannot be said to have accepted that the appellant told the delegate that he suspected his uncle had a high position in the LTTE because the delegate’s decision record makes no reference to that claim. The Authority summarised the appellant’s evidence to the delegate with reference to the appellant’s speculation “that maybe his uncle was suspected of some involvement with the LTTE”. The Minister submitted that the Authority found that s 473DD of the Migration Act was not satisfied because the appellant had not explained why he could not have told the delegate that his uncle was in the LTTE police, albeit without documentary material.

43    In relation to the fifth issue, the Minister said that the appellant’s submissions at the hearing of the appeal did not appear to have any bearing on these matters.

44    The Minister submitted that J[26] is consistent with the Minister’s reading of the Authority’s reasons and the FCCA Judge should not be taken to be making a finding that the appellant was aware that the appellant’s uncle was in the LTTE police at the time of the interview, but simply noting that the Authority proceeded on that basis.

45    The Minister submitted that, if the Court disagrees with the Minister’s position that it was open to the Authority to make the inference that the appellant knew of his uncle’s role in the LTTE police at the time of the SHEV interview, then that could arguably be said to be the making of a legally unreasonable factual finding of significance and accordingly amount to a jurisdictional error by the Authority, but first the Court would need to be satisfied that the finding demonstrated “extreme” illogicality such that reasonable minds could not differ concerning it. The Minister relied on CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [59]-[61] (CQG15) and BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 at [36], in making that submission.

Consideration

46    The FCCA Judge did not err when he found that the first ground of review was rather incoherently expressed: J[11]. The Court perceives no error in his Honour’s finding, for the reasons given, that the focus of the first ground was DR[6] and that it should be understood as set out at J[19] in light of the statutory scheme (see [22] above).

47    The FCCA Judge also did not err in finding (J[21]-[22]) that the fact (which the Court understands to mean “the mere fact”) that the documents provided to the Authority on 15 and 30 August 2016 relate to the appellant’s claims does not, without more, mean that the Authority is bound to consider them: if the documents are “new information” then s 473DD must be satisfied: Plaintiff M174/2016 at [29]. Further, even if the 1999 personnel file note might be regarded as corroborative of the appellant’s submissions in the appellant’s alleged untranslated statements to the delegate, the 1999 personnel file note communicated “knowledge about some particular fact, subject or event” and was therefore “information” which had not been provided to the delegate and was therefore “new information” within s 473DC (see Plaintiff M174/2016 at [24]). To the extent that particulars of the first ground or submissions made by the appellant’s counsel after the hearing suggest otherwise, they cannot be accepted.

48    The correctness of the FCCA Judge’s findings at J[25]-[26] rely on matters which were raised in the Court’s email sent after the hearing of the appeal, not in the way the case was run before his Honour.

49    The quoted material from the 15 August submissions (set out at [30(2)] above) comprises two paragraphs. The first paragraph deals with what the appellant says was a claim made in untranslated statements concerning his uncle which he put to the delegate at the SHEV interview. The second paragraph deals with the appellant’s efforts to get documentary evidence to support his claims made to the delegate in the untranslated statements and the content of the 1999 personnel file note.

50    In relation to the first paragraph of the quoted material:

(1)    By the words “During the interview the applicant was questioned” to “high position/prominent position in the LTTE”, CUP16’s migration agent told the Authority that CUP16 told the delegate that “maybe [his uncle] was in a higher position” and “I do suspect that uncle had a higher position/prominent position in the LTTE” but that information was not translated. There are several things to note about that claim:

(a)    It is a claim of suspicion only, as submitted by the appellant’s counsel. It is not specific about what the suspected “higher position” might be.

(b)    Contrary to some of the appellant’s counsel’s submissions, there is nothing in the first paragraph of the quoted material to the effect that the claim made in the untranslated statements was that the appellant suspected that the uncle had a high position “in the LTTE police” or that he was a “high ranking police official” (see the submissions at [16], [24] and possibly [27]).

(2)    The next words “However, it is important to point out” to “his uncle was possibly involved and had a high position in the LTTE” convey that at the time of the SHEV interview, the appellant did not have documentary evidence to support his claimed suspicion that his uncle “was possibly involved and had a high position in the LTTE”.

51    Accordingly, the first paragraph asserts that the appellant gave evidence to the delegate which was incremental to the information contained in the September 2013 and January 2016 statements which had been provided to the Department. As noted by the delegate in its decision record at [9], those statements gave evidence to the effect that the appellant had no knowledge of his uncle’s involvement with the LTTE but he assumed that it was possible given his uncle lived in an LTTE controlled area during the Sri Lankan civil war. That is evidence that the Authority accepted at DR[11].

52    In relation to the second paragraph of the quoted material:

(1)    The words “The applicant now instructs us” to “the uncle was a chief policeman in the LTTE (translated letter in English is attached)” make it clear that what follows is new information. The migration agent goes on to explain that “The applicant informs us that he was only recently able to get this letter after he tried hard to convince his uncle’s family to help him to secure some form of evidence to support his claim” (emphasis added). While (as submitted by the Minister) it is true that the migration agent did not, in terms, say that the appellant did not know the information contained in the 1999 personnel file note before he received it, the italicised words indicate that the 1999 personnel file note was received in response to the appellant pressing his uncle’s family to provide evidence to support his suspicion that his uncle had “a high position/prominent position in the LTTE”. The natural reading of this part of the quoted material is that this was when the appellant found out that his uncle had been a “chief policeman in the LTTE”.

(2)    The words “The uncle’s family … were afraid that they might have to face serious repercussions from the SL authorities if it was known to them” is an explanation for why the appellant did not have access to the 1999 personnel file note earlier. If the appellant only found out the exact nature of his uncle’s involvement when he received the 1999 personnel file note, it is also an explanation of why he did not make the claim in those terms earlier.

(3)    The second paragraph of the quoted material concludes: “We submit that this information is credible personal information that which was not previously known and may have affected the delegate’s consideration of the applicant’s claims, had it been known. We respectfully request the presiding reviewer to consider this new information as set out in section 473DD of the Migration Act”. The Court accepts the Minister’s submission that the request to consider “new information” comprises the 1999 personnel file note and the information that the appellant’s uncle was a “chief policeman” in the LTTE. In view of the appellant’s assertion in the first paragraph that he had made the untranslated statements to the delegate, it would be unnecessary to seek to establish that s 473DD was complied with in relation to those statements.

53    It would have been of assistance in assessing the Authority’s reasoning if it had addressed the issue of whether the untranslated statements had been made. The Minister’s submission that the absence of the information conveyed by the untranslated statements from the delegate’s decision record at [9] indicates that they were not made suffers from two problems: if they were untranslated you would not expect them to be there and the Authority did not say that it relied on the logic proposed by the Minister. While it may have been open to the Authority to reject that the untranslated statements had been made – since it does not appear that the 15 August submissions were supported by a translated transcript of the SHEV interview – the Authority did not do that either. Nor did it make any adverse credit finding about the “higher position” element of the untranslated statements.

54    There is no apparent basis for the Authority’s finding that the 1999 personnel file note reflected a “known but previously undisclosed claim”. It is contrary to:

(1)    The first paragraph of the quoted material on which the Authority appears to rely uncritically in DR[6] when it said “At the SHEV interview, he said he suspected but didn’t know that his uncle had been in the LTTE and he suspected possibly a high position” (emphasis added); and

(2)    The Authority’s finding at DR[11] in which it accepted that the appellant “did not know the reason for [the authorities’] interest in [his uncle]” in 2009 and that “[h]e speculated that maybe his uncle was suspected of some involvement in the LTTE” (emphasis added). It also accepted that he and his family had not been in touch with his uncle since the end of the war in 2009 and that his uncle’s wife and child were also deceased.

55    In light of those matters and in circumstances where the delegate and the Authority had been prepared to accept the appellant’s evidence that he had been detained and questioned about his uncle’s whereabouts in 2010 and 2011 and the Authority (at DR[16]) found him to be a “somewhat credible witness”, the Authority’s finding that it was a “known position” that the uncle was a “chief policeman” in the LTTE at the time of the SHEV interview does not appear to have been open to the Authority. That finding was critical to its finding that “exceptional circumstances” did not exist. In those circumstances, the error was jurisdictional in nature: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 648 (per Crennan and Bell JJ); and CQG15 at 517 (per McKerracher, Griffiths and Rangiah JJ).

56    While the issues raised in the Court’s email were not argued in that way in the FCCA proceedings, they underpin the issues raised by the first ground of review in the FCCA. The Court is satisfied that it is in the interests of justice that the issues be considered on appeal.

57    The appeal should be allowed, the Authority’s decision should be set aside and the matter remitted to the Authority for reconsideration according to law.

58    For completeness, the Court accepts the Minister’s oral submission that insofar as the appellant made oral submissions explaining his failure to raise all of his claims before the delegate (such as personal involvement with the LTTE involved in border patrol and some training required of him as a young Tamil male in an LTTE controlled area) based on personal fears, they have no relevance to any review of the Authority’s decision-making, since those claims were not made to the delegate or Authority.

59    The Court does not accept that the issues raised by the appellant in oral submissions and the appellant’s counsel in supplementary submissions filed after the hearing in relation to the police message form were run before the FCCA, despite the broad language of the “chapeau” of the first ground. Further, the Court is not satisfied that any such ground has sufficient prospects of success to found the grant of leave to raise it on the appeal.

60    At DR[8], the Authority found as follows:

The applicant submits that he is subject to an ongoing current investigation and he could not provide that information before the decision as the applicant’s family received the Sri Lankan police message form dated 29 July 2016 only recently. I have concerns as to the credibility of the contents of police message form. Accepting the applicant's claims as made, he maintains the Sri Lankan authorities are aware he is overseas so there would be no utility in them issuing the message form requiring him to attend and make a statement in Sri Lanka. On the two occasions the applicant claims he was previously detained by the authorities in Sri Lanka, he was picked up by the authorities in the street and not asked to attend for the purposes of making a statement by a, from its appearance, routine message form delivered to his family’s home. Additionally, if the contents of the message form are genuine, a message for him to attend to make a statement about an inquiry being held is so broad, lacking any indication as to who or what the inquiry is about, that I do not consider it of any probative value in relation to the applicant's protection claims. I am not satisfied there are exceptional circumstances that justify considering the 29 July 2016 police message form.

61    The supplementary submissions made by and on the appellant’s behalf appear to take issue with the Authority’s conclusion that there were no extraordinary circumstances justifying its consideration, but the Authority considered the nature of the information in the context of the appellant’s claims and found that it did not have any probative value. That is a sufficient foundation for the Authority’s conclusion for the reasons that it gave.

GROUND 2

62    The second ground of judicial review was that the Authority fell into error by “failing to take into account/ignoring relevant considerations being the relatives and/or giving meaningful consideration of the Applicant’s claims thereby committing jurisdictional error”. Despite the reference to “relatives” in this ground of judicial review, the particulars of this claim were that by reason of the Authority ignoring claims (and making no findings in respect of those claims) that CUP16’s cricket team members had been questioned about him regarding roles and association that he may have with the LTTE, the Authority did not carry out a meaningful review and it thereby committed jurisdictional error.

63    The FCCA Judge noted the Authority’s express reference to CUP16’s claim that members of his cricket team had been questioned about his whereabouts after he left Sri Lanka at DR[19] and that the Authority dismissed the claim at DR[21]. His Honour found that if, by “ignore” CUP16 meant “failed to consider the claim”, he was obviously incorrect but that if he meant “did not accept the claim”, then he is factually correct but incorrect that it amounted to a jurisdictional error. His Honour rejected the ground: see J[29]-[30].

64    The Court perceives no error in the FCCA Judge’s rejection of this ground.

GROUND 3

65    In the third ground of judicial review, CUP16 claimed that the Authority fell into error by “failing to assess the actual link between the [appellant’s] uncle who is a former high-ranking LTTE police officer. The Authority’s consideration of the applicant’s claims thereby resulted in jurisdictional error”.

66    Had this Court found that the first ground was not made out, then this ground would necessarily have failed. If s 473DD prevented consideration of the 1999 personnel file note (which contained the “new information” that the uncle had been a “chief policeman” in the LTTE), then the Authority is bound to consider the appellant’s claim to protection without reference to that specific information and the FCCA Judge’s reasoning at J[30]-[35] would be without error.

67    Although the Court has found that the first ground is made out, it does not necessarily follow that the Authority will be required to consider the appellant’s claim to connection with a “former high-ranking LTTE police officer”. That will only be required if, following the Authority’s re-consideration of whether s 473DD applies to that information according to law, it determines that it is entitled to take into account the 1999 personnel file note. Accordingly, it is not appropriate to make a finding on this ground.

GROUND 4

68    In the fourth ground of judicial review, CUP16 claimed that the Authority committed jurisdictional error when it “failed to take into account that the [appellant’s] detention in poor prison conditions (DR[59]-[60]) would constitute persecution complimentary protection provisions and thereby applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958 and/or failed to address an integer/claim regarding the detention claim.”

69    There were 15 paragraphs of particulars to this ground.

70    As observed by the FCCA Judge, CUP16 claimed to satisfy the criterion for the grant of a protection visa in s 36(2)(aa) on the basis that, if returned to Sri Lanka, he will be placed on remand in unsatisfactory prison conditions. The risk arose because, when he left Sri Lanka, he did so in contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka). His Honour went on to consider expressly the definition of “significant harm” in s 36(2A) and the definition of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1). His Honour noted that in rejecting CUP16’s claims concerning s 36(2)(aa), at DR[60], the Authority applied the same reasoning as the Full Court (Kenny and Nicholas JJ) in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69; 243 FCR 556 at [59], that is, that the natural and ordinary meaning of “intentional infliction” when used in the definition of “cruel or inhuman treatment or punishment” involves a subjective intention to bring about the victim’s pain and suffering. His Honour went on to note that the appeal from the Full Court’s decision was dismissed by the majority of the High Court in SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; 262 CLR 362, referring to the reasons of Kiefel CJ, Nettle and Gordon JJ at [26] and of Edelman J at [101] and [114]. The FCCA Judge concluded that there was no error in the way the Authority dealt with CUP16’s claims arising out of prison conditions in Sri Lanka and accordingly rejected that ground: J[40]-[44].

71    The Court perceives no jurisdictional error in the Authority’s approach or appellable error in the FCCA Judge’s approach and conclusions concerning this ground.

GROUND 5

72    In the fifth ground of judicial review, CUP16 claimed that the Authority committed jurisdictional error “when it applied the wrong test and/or failed to address an integer/claim regarding the detention claim upon return to Sri Lanka. The particulars of this ground asserted that while the Authority addressed whether there would be a suspicion that CUP16 had links to the LTTE upon his return to Sri Lanka, the Authority failed to deal with whether he would be imputed with a pro-LTTE profile because of his link to his uncle or the risk to him arising from his uncle’s role and activities.

73    The FCCA Judge found that this ground was no more than a different way of saying the claim raised in the third ground: J[45]. The Court perceives no error in this finding and the same result follows as set out at [67] above.

GROUND 6

74    In the sixth ground of judicial review, CUP16 claimed that the Authority committed jurisdictional error when it “presumed that a family member will be able to assist with the question of bail. These findings are not based on evidence”.

75    The primary judge referred to DR[43] and [47] and concluded (at J[48]) that contrary to CUP16’s submissions, the Authority made no presumptions about bail at all and made no finding that a family member would be required to do anything in respect of bail. Rather its findings were based on country information which stated, unequivocally, that bail was granted on personal surety and a family member may be required to act as guarantor. It made no finding about whether a family member would be required to act as guarantor. CUP16 made no claim that his family would be unable to guarantee his return to court if he were charged for illegally departing Sri Lanka. This reasoning is entirely consistent with the Full Court’s reasoning in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91.

76    The Court perceives no jurisdictional error in the Authority’s approach or appellable error by the FCCA Judge on this ground.

COSTS

77    The Court does not accept the submission made by the appellant’s counsel that the costs order made in the FCCA should be set aside. The appeal has been resolved on the basis of issues raised by the Court on appeal. However, as the appellant was successful on the appeal, a costs order should be made in favour of the appellant.

CONCLUSION

78    Orders should be made in accordance with these reasons.

Associate:

Dated:    22 July 2019