FEDERAL COURT OF AUSTRALIA

DDM17 v Minister for Home Affairs [2019] FCA 1510

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 20 December 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 3 December 2018: see DDM17 v Minister for Immigration & Anor [2018] FCCA 3542 (DDM17). The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Safe Haven Enterprise (Subclass 790) visa (SHEV).

THE FACTUAL CONTEXT

2    The appellant is a Sri Lankan citizen. He is of Tamil ethnicity and he holds Sunni Muslim religious beliefs. He arrived in Australia as an unauthorised maritime arrival on either 3 November 2012 (the date at [1] of the Authority’s reasons (Reasons)) or 9 January 2013 (the date on his Irregular Maritime Arrival Entry Interview form). On or about 30 March 2016, the appellant lodged his application for a SHEV with the Department of Immigration and Border Protection (the Department).

3    In its decision, the Authority summarised the appellant’s claims before it as follows (Reasons at [5]):

•    The [appellant] is a Tamil male from Trincomalee District in the Eastern Province;

•    Sometime between 2010 and 2012, the [appellant] was detained twice at a military camp by persons he believed to be officers of the “CID” (Criminal Investigation Department);

•    On both occasions the [appellant] was sexually assaulted. On the first occasion, he was threatened and asked for money;

•    Following these incidents the [appellant] remained in hiding. The CID came to his home several times looking for him;

•    Around this time, many people known to the [appellant] were killed. A friend of his was also sexually assaulted by the same person from the military camp;

•    In around 2012, upon return from India, the [appellant] was threatened so that he would pay a bribe to an airport official;

•    On 9 October 2012, the [appellant] was arrested by the military and detained for three days. He was interrogated under suspicion of having links to the Liberation Tigers of Tamil Eelam (LTTE), severely beaten and had to pay money to secure his release;

•    Following this, the [appellant] was arrested and briefly detained by persons he suspected were from the Karuna Group. He was again threatened and asked to pay money;

•    After his arrival in Australia, persons from the CID went to his home looking for him. His family were scolded with filthy swords and his brother was taken for questioning;

•    In 2015, the [appellant’s] father approached a local MP to seek advice about the [appellant] returning to Sri Lanka. His father was told due to CID involvement he cannot return to Sri Lanka;

•    If returned to Sri Lanka, the [appellant] fears he will be threatened, seriously harmed, or killed by the CID, or another arm of the Sri Lankan government, on account of:

-    his Tamil ethnicity

-    his former place of residence

-    his imputed LTTE involvement/connections

-    his actual or imputed wealth, or that of his family’s.

4    On 20 July 2016, the appellant was interviewed by an official of the Department in connection with his SHEV application (the SHEV interview). A delegate of the Minister (the delegate) refused to grant that visa on 9 November 2016.

5    The appellant’s application was then referred to the Authority for a fast track review under Part 7AA of the Migration Act 1958 (Cth) (the Act). On 15 June 2017, the Authority decided to affirm the delegate’s decision. The appellant then applied to the Federal Circuit Court of Australia for a judicial review of the Authority’s decision. As is already noted above, the primary judge dismissed that application on 3 December 2018.

THE GROUNDS OF APPEAL

6    In his notice of appeal filed in this Court, the appellant set out three grounds of appeal, with particulars, as follows:

1.    The Federal Circuit Court erred in failing to find that [the Authority] acted unreasonably in failing to exercise its discretionary power under section 473DC of the Migration Act to seek further information.

Particulars

a.    On 20 July 2016, the [a]ppellant was interviewed by the Department … in relation to his application for a [SHEV] (the SHEV Interview) by a delegate of the [Minister] (the Delegate).

b.    During the SHEV Interview:

i.    the interpreter stated that the [a]ppellant claimed that he was detained for a day in 2010 “for my sexual orientation problem” and “because of my sexual preference”;

ii.    the interpreter subsequently informed the Delegate that he was not sure he had correctly used the words “sexual orientation” and “sexual preferences”;

iii.    the interpreter had an untranslated discussion with the [a]ppellant;

iv.    the interpreter then stated that:

1.    “it’s supposed to be a kind of rape ... he says it is not like what I meant to be, it is supposed to be a sodomy”;

2.    the [a]ppellant had said “I am not a transgender, I’m not a gay”.

c.    The SHEV Interview did not clearly indicate whether the [a]ppellant had alleged that he was raped or sodomised as a result of his sexual orientation or preference.

d.    The Authority did not consider whether to exercise its powers under s 473DC to obtain new information from the [a]ppellant as to whether he feared harm in Sri Lanka on the basis of his sexual orientation or sexual preference, in circumstances where the Authority, had it considered whether to exercise its powers in this regard, would have adverted to this in its written reasons.

e.    In the alternative to 1(d), the Authority decided not to exercise its powers under s 473DC to obtain new information from the [a]ppellant as to whether he feared harm in Sri Lanka on the basis of his sexual orientation or sexual preference.

f.    The Authority did not consider whether to exercise its powers under s 473DC, or alternatively did not exercise these powers, to obtain new information from the [a]ppellant as to whether he feared harm in Sri Lanka on the basis of his sexual orientation or sexual preference in circumstances where:

i.    it was not clear on the available material whether this claim had been made; and

ii.    the Authority knew, or should be taken to have known, that the [a]ppellant was likely to have information regarding whether he feared harm in Sri Lanka on the basis of his sexual orientation or sexual preference.

g.    In declining to consider whether it should have exercised its discretion, or alternatively in declining to exercise its discretion, to seek information from the [a]ppellant in relation to his claim based on his sexual orientation, the Authority acted unreasonably.

h.    The Authority’s error or errors in this regard constituted jurisdictional error.

   i.    The Federal Circuit Court erred:

i.    in failing to find that the Authority had erred; and

ii.    in finding that the Authority had not acted unreasonably in failing to exercise or consider exercising its powers under s 473DC to seek information from the [appellant].

2.    Further or in the alternative, the Federal Circuit Court erred in failing to find that the [Authority] failed to consider a claim raised ‘squarely’ before it.

a.    The [a]ppellant repeats particulars 1(a) and (b) above.

b.    The Authority did not consider whether the [appellant] had made a claim for protection based on his sexual orientation or preference.

c.    The Authority knew, or should be taken to have known, that the [appellant] had made a claim regarding his sexual orientation or preference.

d.    In failing to deal with a claim raised by the evidence and/or in misunderstanding or misconstruing a claim advanced by the [appellant] the Authority erred in failing to have regard to a relevant consideration (NABE v Minister for Immigration & Multicultural and Indigenous Affairs (No 2) [2004) FCAFC 263; (2004) 144 FCR 1 at [63]).

e.    The Authority’s error or errors in this regard constituted jurisdictional error.

f.    The Federal Circuit Court erred:

i.    in failing to find that the Authority had erred; and

ii.    in failing to deal with a claim raised by the evidence and/or in misunderstanding or misconstruing a claim advanced by the [appellant].

3.    The Federal Circuit Court erred in failing to exercise jurisdiction by failing to provide adequate reasons for its decision and to consider fundamental aspects of the [appellant’s] claims.

Particulars

a.    The primary judge gave ex-tempore reasons in which:

i.    only a small number of paragraphs were directed to explaining why the two grounds of judicial review were rejected; and

ii.    the remainder of the primary judge’s reasons were directed to summarising the Authority’s reasons.

b.    The primary judge’s reasons:

i.    amounted to little more than assertions or conclusions; and

ii.    did not adequately explain why the primary judge reached the conclusion that the amended application should be dismissed.

c.    The primary judge failed to grapple directly with important elements of each of the grounds claimed.

d.    In the premises, the primary judge did not provide adequate reasons for his Honour’s decision to dismiss the [a]ppellant’s amended application.

7    At the hearing of this appeal, the appellant elected not to pursue ground of appeal 2 above. He also nominated ground of appeal 3 as his primary ground.

THE AUTHORITY’S DECISION

8    The Authority found the appellant’s claims to be “unconvincing” and to contain a number of inconsistencies (Reasons at [18]). It identified eight such inconsistencies (Reasons at [19]–[26]) and concluded, based on those inconsistencies, that the appellant did not give a genuine account of the events of 2010–2012 (Reasons at [30]).

9    The Authority also found that the appellant was able to acquire a passport in Sri Lanka in 2010 and was able to travel freely in and out of Sri Lanka at about that time. It therefore concluded that he was not “a person with an adverse profile on account of any imputed LTTE links as claimed” (Reasons at [31]). Importantly for the purposes of this appeal, the Authority said (Reasons at [31]) that:

For the above reasons, I do not accept that between 2010 and 2012 the [appellant] was arrested or detained by the CID, the SLA or the Karuna Group, that he or a friend was sexually assaulted, that many people personally known to him were killed, that he was living in hiding, or that he was physically harmed by any arm of the Sri Lankan authorities due to any imputed LTTE links or for any other reason …

10    Thereafter, the Authority found that the appellant would not be at risk of suffering harm for any of the following reasons advanced by him:

(a)    because of his scarring: (Reasons at [32]);

(b)    because of his or his family’s perceived wealth: (Reasons at [33]);

(c)    because he was required to pay a bribe by an airport official following his return from India: (Reasons at [34]);

(d)    because of “his Tamil ethnicity, his former place of residence, his economic status, on account of any actual or imputed LTTE connections, or for any other reason claimed”: (Reasons at [36]); and

(e)    because of his illegal departure from Sri Lanka or status as a returning asylum seeker: (Reasons at [37]–[44]).

11    Accordingly, the Authority found that the appellant did not have a well-founded fear of persecution and therefore did not meet the requirements of the definition of “refugee” in the Act (Reasons at [45]–[46]).

12    Finally, relying upon its findings above and its conclusion that he would not be at risk in connection with his questioning or detention upon his return to Sri Lanka, the Authority also concluded that the appellant did not face a real risk of significant harm under the complementary protection provisions of s 36(2)(aa) of the Act.

THE PRIMARY JUDGMENT

13    The appellant advanced the following two particularised grounds of review before the Federal Circuit Court of Australia:

1A.    The [Authority] failed to get new information from the [appellant] pursuant to s 473DC of the Migration Act.

Particulars

a. On or about 30 March 2016, the [appellant] lodged an application for a [SHEV] (the SHEV Application) with the Department ….

b. On Wednesday 20 July 2016, the [appellant] was interviewed by the Department in relation to his SHEV Application (SHEV Interview).

c. The SHEV Interview was translated from the Tamil language to English by an interpreter with the TIS identity number 5199 (Interpreter).

d. The SHEV Interview contained a claim by the [appellant] that he was detailed [sic – detained] in 2010 for his ‘sexual orientation problem’ or ‘sexual preference’.

e. Later in the SHEV Interview the Interpreter attempted to refine his earlier translation concerning the [appellant’s] ‘sexual orientation problem’ and translated that the [appellant] said he was not transgender or gay.

f. The delegate of the Department took no steps to clarify the nature of the [appellant’s] claims.

g. The [Authority] did not consider whether to exercise its discretion to get new information from the [appellant] as to whether he was making a claim on the basis of his sexual orientation.

h. The [Authority] knew, or should be taken to have known, that the [appellant] was likely to have information regarding his sexual orientation.

i. In declining to consider whether it should have exercised its discretion to get information from the [appellant] in relation to his claim based on his sexual orientation the Authority acted unreasonably.

j. The [Authority’s] error or errors in this regard constituted jurisdictional error.

1B. Further and in the alternative, the [Authority] failed to consider a claim by the [appellant] made ‘squarely’ before it.

Particulars

a. The [appellant] refers to and repeats particulars a - f above.

b. The [Authority] did not consider whether the [appellant] had made a claim for protection based on his sexual orientation or preference.

c. The [Authority] knew, or should be taken to have known, that the [appellant] had made a claim regarding his sexual orientation or preference the nature of which could be misunderstood or misconstrued.

d. The [Authority] failed to consider a claim squarely made.

e. The [Authority’s] error or errors in this regard constituted jurisdictional error.

(Italics in original; emphasis added)

14    In his submissions on this appeal, the appellant’s counsel indicated that ground of review 1A above equated to ground of appeal 1 in the present appeal. It is also apparent from its terms that ground of review 1B above corresponds to, the now not pressed, ground of appeal 2. Finally, it is also worth noting the overlap that exists between the remaining two grounds of appeal in this matter. That overlap arises because ground of appeal 3 concerns the primary judge’s alleged failure to provide adequate reasons with respect to the matters addressed by ground of appeal 1.

15    The primary judge’s ex tempore reasons were relatively brief. At [1]–[4] of DDM17, his Honour summarised the background to the appellant’s application and then, at [5]–[16] of DDM17, he summarised the Authority’s reasons. At [17] of DDM17, his Honour set out the grounds of judicial review before the Federal Circuit Court above and he then proceeded to deal with those two grounds of review in order. With respect to review ground 1A, his Honour’s reasoning occupied four paragraphs as follows (at [18]–[21] of DDM17):

18.    In relation to ground 1A, Ms Scott counsel on behalf of the [appellant], contended that the Authority, having listened to the interview, should have identified uncertainty as to whether the [appellant] was or was not advancing a claim of sexual orientation. Ms Scott contended that in the circumstances it was legally unreasonable of the Authority not to exercise its powers under s  473DC of the Act to invite the [appellant] to attend an interview or to provide further information.

19.    Ms Scott in particular focused upon a part of the transcript of the interview at page 5. That interview was one purporting to record the problems the [appellant] faced having been detained in 2010. There is a reference in that regard between lines 20 to 33 to sexual orientation and sexual preference. It is clear from the interpreter that the [appellant] was contending in the context of the incident that he was concerned he would be suspected to have links with the LTTE. Nothing in the passage on page 5 between 20 to 30 or 30 to 43 identifies a claim that the [appellant] feared harm on the grounds of sexual orientation or sexual preference.

20.    Further in the interview, on page 11, if there had been the slightest uncertainty, it was made crystal clear that the [appellant] was referring to the incident in which he had been the subject of rape and sexual assault and that the [appellant] was not advancing that he was transgender or gay. There was no claim as to sexual orientation or sexual preference that fairly arose on the listening to the recording that the Authority engaged in by reason of which the Authority should have exercised its powers under s 473DC of the Act.

21.    No submissions had been advanced to the Authority or new information provided by the [appellant] when given the opportunity to do so. Of more significance, it is apparent that the Authority listened to the recording and in light of the listening to the interview and taking into account the transcript before this Court, it is not apparent that any claim was being advanced by the [appellant] that he feared harm on the basis of his sexual orientation or his sexual preference. There was no issue or new matter in respect of which it could be said it was legally unreasonable of the Authority to fail to consider its powers under s 473DC of the Act. Accordingly, no jurisdictional errors alleged in ground 1A is made out.

(Emphasis added)

16    With respect to ground of review 1B, his Honour’s reasoning was similarly brief, but explicit. It was (at [22]–[23]):

22.    … for the reasons I have already given, it is apparent that no claim was advanced that the [appellant] feared harm based on sexual orientation or sexual preference. A fair reading of the material does not support any such claim arising before the Authority. The transcript of the interview does not support any such claim arising before the Authority.

23.    Accordingly, there was no failure to consider an integer of the applicant’s claim or the [appellant’s] claim as alleged in ground 1B. There was no such claim. No jurisdictional error alleged in ground 1B is made out.

THE TRANSCRIPT OF THE SHEV INTERVIEW

17    The transcript of the SHEV interview to which the primary judge referred in the above paragraphs was tendered in evidence before him. It is 19 pages long. While his Honour only referred to pages 5 and 11 of that transcript, it is necessary, for the purposes of this appeal, to set out the following parts of that transcript that mention either the 2010 rape incident, or its aftermath, or the Criminal Investigation Department (CID) officer known as Bandara. Two things should be noted about these excerpts. First, the emphasised parts below were those referred to at [19]–[20] of DDM17. Secondly, “IM” refers to the appellant, “Off” refers to the interviewing officer whose first name was “Jacqui” and “Int” refers to the interpreter.

18    First, while the appellant was being asked about his arrest on 9 October 2012, he referred to the earlier rape incident in 2010 (page 4, line 17 to page 6, line 30) as follows:

(Emphasis added)

19    Secondly, the interviewing officer then returned to the arrest on 9 October 2012 as follows (page 6, line 32 to page 8, line 44):

20    Thirdly, about three pages later in the transcript, when asked what he thought might happen to him if he were to return to Sri Lanka, the appellant mentioned the person named Bandara again and provided the following answers (page 11, line 6 to page 12, line 10):

(Emphasis added)

21    Fourthly, on the next page of the transcript, the interviewing officer returned to the issue of the rape in 2010 and the following exchange occurred (page 13, line 4 to page 13, line 33):

22    Finally, on the next page of the transcript, when the appellant was asked about the interview that was conducted when he first entered Australia and why he did not mention that he was sexually abused in 2010 during that interview, the appellant said (page 14, line 5 to page 14, line 20):

THE RELEVANT LEGISLATIVE PROVISIONS AND PRINCIPLES

23    The Authority’s fast track review of the delegate’s decision in this matter was governed by Part 7AA of the Act. When a fast track review decision is referred to the Authority under s 473CA of the Act, it is required under s 473CC to review that decision and either affirm it (s 473CC(2)(a)) or remit it for reconsideration (s 473CC(2)(b)). Division 3 of Part 7AA (ss 473DA to 473DF) prescribes how the Authority is to conduct that review. Relevant to this appeal, s 473DD prevents the Authority from considering any new information unless the criteria in subsections (a) and (b) are met, as follows:

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.

24    The expression “new information” is defined in s 473DC in the following terms:

(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.

25    Accordingly, as Thawley J observed in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (at [71]):

… Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.

26    In this respect, it should be noted that the Authority did obtain and consider certain new information when it conducted its review in this matter. In its Reasons (at [4]), it recorded what that new information was and explained why it considered it fell within the terms of the above provisions, as follows:

I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad (information not specifically about the applicants but about a class of persons of which the applicants are a member) from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report updates. I am satisfied that there are exceptional circumstances to justify considering this new information.

(Footnote omitted)

THE CONTENTIONS

27    The appellant’s contentions were essentially encapsulated in the particulars to his two remaining grounds of appeal (see at [6] above). In brief summary, under ground of appeal 3, he contended that the primary judge did not explain why he thought it was “clear” or “crystal clear” what claim the appellant was advancing during the SHEV interview (at [19]–[20] of DDM17) and he did not engage with the argument put to him in the appellant’s written submissions before him as follows (at [25]):

Much later in the SHEV Interview, unprompted, the interpreter expressed concern as to whether he had used the right words to translate for the [appellant]. He settled on rape and sodomy. Although the interpreter said that the [appellant] said ‘it is not like what I meant it to be, it is supposed to be a sodomy’, and that ‘I am not a transgender, I’m not a gay’, the delegate took no steps to clarify the nature of the [appellant’s] claims beyond this. The fact that the [appellant] denied being transgender or gay did not address in its entirety whether his sexual orientation or preference had led him to be taken into detention. The meaning of ‘it is not like what I meant it to be’ was not clear in the circumstances.

(Emphasis in original)

28    With respect to ground of appeal 1, he contended that, given the ambiguity that is present in the SHEV interview with respect to the appellant’s statement concerning his sexual orientation or preference, the Authority acted unreasonably in not exercising its discretion under s 473DC to seek new information to clarify whether the appellant was advancing a claim in that respect. As for the primary judge’s decision, the appellant contended that his Honour erred by not detecting and correcting that unreasonableness on the part of the Authority. As a consequence, the appellant contended that, if he succeeded on ground of appeal 3, the Court should remit the matter to the Federal Circuit Court for reconsideration without deciding ground of appeal 1. Alternatively, if he did not succeed on ground of appeal 3, but succeeded on ground of appeal 1, the primary judge’s order should be set aside, the Authority’s decision should be quashed and his application should be remitted to the Authority to be reconsidered according to law.

29    In his submissions, the Minister contended that the primary judge’s reasons at [19]–[20] adequately explained why he concluded that the Authority had not committed any jurisdictional error, in the sense that those reasons properly informed the appellant why his judicial review application had been dismissed. The Minister contended that, in those paragraphs of his Honour’s reasons, he duly reviewed the Authority’s reasons and found, as a matter of fact, that the appellant had not advanced a claim to fear harm on the basis of his sexual orientation or preference, actual or perceived. Accordingly, the Minister contended that was sufficient for the primary judge to dispose of that ground of review.

30    As for ground of appeal 1, the Minister contended that the appellant’s primary claims before the delegate and the Authority were that he was imputed to have connections with the Liberation Tigers of Tamil Eelam (LTTE) because his home was located in the vicinity of their base and because of the frequency of his travelling in and out of Sri Lanka. The Minister contended that the Authority had properly considered those claims and rejected them because of the eight inconsistencies it identified in its reasons. The Minister also contended that the SHEV interviewing officer had sought clarification when the appellant mentioned the sexual assaults inflicted on him in 2010 and ascertained that he was not advancing a claim connected with his sexual orientation or preference. The Minister contended that, if the appellant failed to properly respond to the officer’s questioning in that regard, that was not reflective of any error on her part and could not be relied upon by the appellant.

CONSIDERATION

Ground of appeal 3 – inadequate reasons

31    The appellant’s primary contention in this appeal (ground of appeal 3) is that the primary judge erred by not explaining in his reasons for judgment why he considered the Authority was not obliged to exercise its discretion under s 473CD of the Act to clarify whether he was advancing a claim in his SHEV interview that he feared harm on returning to Sri Lanka for a Convention related reason, namely his sexual orientation or preference. It is well-established that the primary judge was obliged to provide adequate reasons for his judgment. In DL v The Queen (2018) 92 ALJR 636; [2018] HCA 26, Kiefel CJ, Keane and Edelman JJ recently re-stated that obligation in the following terms (at [32]):

The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

(Footnotes omitted)

32    Their Honours went on to sketch the extremes at which reasons will be considered to be inadequate, as follows (at [33]):

At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial …

(Footnote omitted)

33    To properly understand the primary judge’s reasons in this matter, it is necessary to identify the case that was put to him by the appellant. First, the appellant claimed the Authority failed to exercise its discretion to obtain information from him to clarify certain ambiguities he claimed were present in his SHEV interview transcript set out in ground of review 1A above (see at [13]). The particulars to that ground of review identified the particular parts of the SHEV interview transcript which were of concern to him. Specifically, particular (d) referred to page 5 of the transcript (highlighted at [18] above) and particular (e) referred to page 11 (highlighted at [20] above). Further, in his written submissions before the primary judge, the appellant contended that the words in the latter part of the transcript: “is not like what I meant [it] to be, it is supposed to be a sodomy” (at page 11, lines 32–33) and: “I am not a transgender, I’m not a gay” (at page 11, line 43) were ambiguous and should have been clarified by the Authority. Specifically, he claimed: “The fact that [he] denied being transgender or gay did not address in its entirety whether his sexual orientation or preference had led him to be taken into detention. The meaning of ‘it is not like what I meant it to be’ was not clear in the circumstances” (see at [27] above).

34    Secondly, in ground of review 1B, the appellant claimed that the Authority had failed to consider a claim raised “squarely” before it (see at [13] above). As appears at particular b. of that ground of review, that claim was one “for protection based on his sexual orientation or preference”. In this respect, the appellant appears to have used the word “squarely” interchangeably with the word “expressly”. However, it appears from the particulars to ground of appeal 2 in this appeal (now not pressed) that the word “squarely” was taken from the Full Court decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [58] per Black CJ, French and Selway JJ. If that is so, it is relatively clear from the discussion at [58] and [63] of NABE that the word “squarely” was used in contradistinction to a claim that had been expressly raised. Nonetheless, neither the appellant nor the primary judge appears to have adverted to this distinction. On this topic, it should also be noted that, as well as not pressing ground of appeal 2 in this appeal, in oral submissions, the appellant’s counsel conceded that the appellant did not expressly articulate a claim that he may suffer harm because of his actual or perceived sexual orientation or preference if he were to return to Sri Lanka.

35    In dealing with ground of review 1A, the primary judge specifically referred to the two pages of the SHEV interview transcript mentioned above. In doing so, his Honour highlighted the following three matters:

(a)    that it was “clear” that the 2010 rape and sexual assault incidents were raised by the appellant in the context of a claim that he feared harm if he were to return to Sri Lanka because he was suspected of having links with the LTTE and not because of his sexual orientation or preference (DDM17 at [19] set out at [15] above);

(b)    that the appellant had made it “crystal clear”, when referring to those incidents, that he was not “transgender or gay” (DDM17 at [20] set out at [15] above); and

(c)    that, as well as having regard to the transcript of the SHEV interview, the Authority had listened to the audio recording of that interview (DDM17 at [21] set out at [15] above).

36    Based upon these matters, the primary judge concluded that there was no occasion for the Authority to consider exercising its discretion under s 473DC of the Act (see DDM17 at [21] set out at [15] above). This conclusion was then reinforced by the conclusion the primary judge reached with respect to ground of review 1B. In respect of that ground, he said (at [22]):

… no claim was advanced that the [appellant] feared harm based on sexual orientation or sexual preference. A fair reading of the material does not support any such claim arising before the Authority. The transcript of the interview does not support any such claim arising before the Authority.

37    When these reasons are read fairly, and as a whole, I consider they accurately identified and sufficiently addressed the main issues in contention before his Honour and explained why he decided to reject the appellant’s application for judicial review of the Authority’s decision. Those issues were whether or not a claim to fear harm because of his sexual orientation or preference was sufficiently raised by the appellant in his SHEV interview, whether “squarely” (ground of review 1B) or, albeit with some ambiguity, clearly enough (ground of review 1A), that it either had to be considered by the Authority or that any ambiguity concerning it had to be clarified by the Authority, exercising its discretion to obtain information under s 473DC of the Act, respectively. While it is true that, in addressing those claims, his Honour did not expressly identify the applicable principles of law involved, he did, in my view, make the necessary findings of fact. That is to say, based on the contents of the SHEV interview transcript and the fact that the Authority had not just relied upon that transcript, but it had also listened to the audio recording, his Honour concluded that no such claim had been raised such as to require the Authority to consider it (ground of review 1B) and that, in the circumstances, there was no occasion for the Authority to act to clarify the appellant’s statements in that interview (ground of review 1A). It follows that the parties, and particularly the appellant, were able to understand from those reasons why his Honour dismissed the appellant’s application. For these reasons, I do not consider there is any merit in ground of appeal 3.

Ground of appeal 1 – unreasonableness in failure to exercise discretion

38    I turn, then, to the remaining ground of appeal, ground of appeal 1.

39    In essence, this ground seeks to challenge the primary judge’s reasoning as outlined above. So much is clear from the particulars which support it, the central premise of which is that “[t]he SHEV [i]nterview did not clearly indicate whether the [a]ppellant had alleged that he was raped or sodomised as a result of his sexual orientation or preference” (particular c. set out at [6] above). That premise is, in turn, based on the matters set out in particular b. as follows:

i.    the interpreter stated that the [a]ppellant claimed that he was detained for a day in 2010 “for my sexual orientation problem” and “because of my sexual preference”;

ii.    the interpreter subsequently informed the Delegate that he was not sure he had correctly used the words “sexual orientation” and “sexual preferences”;

iii.    the interpreter had an untranslated discussion with the [a]ppellant;

iv.    the interpreter then stated that:

1.    “it’s supposed to be a kind of rape ... he says it is not like what I meant to be, it is supposed to be a sodomy”;

2.    the [a]ppellant had said “I am not a transgender, I’m not a gay”.

40    Based on these aspects of the SHEV interview transcript, the appellant claims that the Authority acted unreasonably in failing to exercise its discretionary power under s 473DC of the Act (see at [6] above).

41    In this matter, as in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 (at [21]):

There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.

(Footnote omitted)

42    In oral submissions in this appeal, the appellant’s counsel stated that he was relying upon “unreasonableness of the exercise of procedural discretion”. I take this to refer to the second of the two different contexts in which the concept of unreasonableness may be employed, namely “a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process” (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) at [44]). The other is outcome related unreasonableness. In Singh, with respect to process related unreasonableness, the Full Court expressed the tentative view (at [47]) that:

… where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court …

43    The reason why the Authority exercised its power is critical because, as was stated by Nettle and Gordon JJ, in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 (SZVFW) at [80]:

… The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.

(Footnote omitted)

Their Honours went on to emphasise that such a review exercise is “invariably fact dependent and requires a careful evaluation of the evidence” (SZVFW at [84]).

44    Two other matters should be noted about the appellant’s case under this ground of appeal. First, he accepts that he bears the onus to establish the unreasonableness he claims exists in the Authority’s decision. On this question of onus, Thawley J observed in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (at [38]), with respect to a similar challenge concerning a decision of the Authority, that the appellant had to establish:

(1)    the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion …; [and]

(2)    that there was jurisdictional error in failing to consider exercising the discretion …

45    Secondly, the appellant also accepts that he must meet a higher legal standard where the unreasonableness concerned involves the exercise of a discretion which is of a procedural character (see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [71]).

46    For the following reasons, I do not consider the aspects of the SHEV interview transcript to which the appellant has referred are sufficient to discharge his onus to establish, to the requisite standard mentioned above, either of the matters set out at [44] above. First, it is important to note that s 473DC(2) makes it clear that the Authority does not have a duty to obtain new information when it is conducting a review (see at [24] above). Secondly, it is equally important to observe that the appellant did not at any time request the Authority to obtain, or receive, any further information from him on the question whether he was advancing a claim to fear harm in Sri Lanka by reason of his sexual orientation or preference. That is to say, he relies entirely on the uncertainty that he claims is apparent in the answers he gave in the two closely confined parts of the 19 page SHEV interview transcript to which he has referred in the particulars above.

47    In this respect it is important to note, as the Minister pointed out in his submissions, that it is apparent from that transcript that the interviewing officer who conducted the SHEV interview did make at least two attempts to clarify what the appellant and the interpreter were referring to when his sexual orientation or preference was first mentioned (page 5, lines 24 and 33 at [18] above). The unresponsive answers the appellant gave may well be explained by his embarrassment with the subject matter. But whether or not that is so, that non-responsiveness did not, in my view, place an obligation on the Authority to attempt to obtain further clarification in its review. In any event, the position the appellant ultimately adopted on that subject was that “I am not a transgender, I’m not a gay” (page 11, line 43 at [20] above). In my view, that statement removes from consideration an express claim based on his sexual orientation or preference. Once that clarification was provided, it is difficult to see how the Authority was obliged, in its review, to investigate whether the appellant may have been advancing a claim based on his perceived sexual orientation or preference. That would have required the kind of “creative activity” or “independent analytical exercise” rejected in NABE (at [58]) and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (at [15]), respectively.

48    Secondly, on a fair reading of the Statement of Protection Claims the appellant provided in support of his SHEV application, it is clear that his claim to fear harm in Sri Lanka relied entirely on his suspected LTTE connections and contained no mention of his sexual orientation or preference. That Statement is referred to in the introductory passages at page 4 of the SHEV interview transcript (see at [18] above). There, the interviewing officer began by asking the appellant about his “statement of claims” which said he had “left Sri Lanka because [he was] detained by … people that [he] thought were involved with the CID” (page 4, lines 18–19 at [18] above). It is common ground that the interviewing officer was there referring to the appellant’s Statement of Protection Claims which was submitted by his migration agent in conjunction with his SHEV application.

49    In that Statement, under the heading “Harm Experienced in SRI LANKA”, the appellant described the threats to which he and his family were subjected and his view that the source of those threats was the view held by the authorities in Sri Lanka that they were supporters of the LTTE. Specifically, he said:

19.    The reason that I left Sri Lanka was because of a life threatening situation, I was going to be killed. I had a peaceful life there, always fearful. It’s not only the fear but the impact on my mother and sisters. I grew up on Arrura Chanai, an island with constant shelling, on one side was the Liberation Tigers of Tamil Eelam (LTTE), on another side the navy, and they were constantly shelling each other. The military thought that people on my island were supporters of the LTTE and we would have information about the LTTE. It’s not only me but my entire family that has been affected. I have never been connected to the LTTE. I am Tamil and I am Muslim. We are a minority on the island. It is because I am Tamil that the military and the Sri Lankan government have persecuted me and my family.

20.    The basic reason for my fear is that the army took me for investigation. This was after the war was meant to be finished. They took me twice. This is the CID (Central Intelligence Division). Two kilometres from my home in Arraru Chanai (village) in Mutuy (district) there was military camp (paramilitary and police). They took me to this camp the first time when I was 20 years old …

(Errors in original)

50    The appellant then proceeded to describe the first occasion (in 2010) when he was taken by the CID to the military camp, as follows:

20.    … The reason that they (CID) took me was because they suspected I was connected to the LTTE. They took me in the afternoon. They came with guns so I couldn’t refuse to go with them. They took me on a motor bike and I was held at that camp all night.

21.    This first time they demanded money. When we arrived at the camp for some time they were threatening me and demanding money. This went on for about half an hour. After that this one person took me away from the camp, to these abandoned houses that were near the camp. He told me if I didn’t go with him he was going to kill me. He said you must follow me and you know that I have killed so many people, this is nothing for me. That one person that was there forced me to have sex with him. I refused but he showed me his gun and forced me. He wasn’t one of the people that took me, he was another person in the camp. He didn’t have a uniform but he appeared like an officer, like someone in charge. His name was BANDARA. He was Singhalese man but he could speak Tamil. I knew his name was Bandara because I witnessed people calling him Bandara. I also heard people calling him sir.

22.    When he sexually assaulted me he physically hurt me. I refusing him and I tried to push him and then he forced me and scratched me, tearing my clothes. I tried to run away and then I fell and I have scar on my head from where I opened a wound on my head when I fell. He forced me to have sex. I was anally raped by this person. The assault lasted for about half an hour, Afterwards he told me to get dressed and he took me back to the military camp and they kept me there overnight.

23.    I believe that the military people in the camp knew Bandara was taking me there and why. Before he took me he went and talked to the military people and from that conversation I thought they know why he is taking me.

24.    Overnight, they kept me near to a filthy toilet, no place to sleep or lie down. I was just squatting there all night. I alone there. In the morning Bandara came to me and said don’t tell anyone what happened or you will be killed. He also said, in the future we (the people from the army camp) will ask you to come the camp and you cannot refuse. If you refuse you will be killed. After that I was released and I walked home from the camp.

25.    I was so frightened by what happened and that they said they could come to our place any time, I didn’t stay at home. But the same day in the afternoon around 4pm they came again and went to my house. I heard they were there, I was hiding at my friends, but I went back to my house within in ten minutes when I heard they were there because I remembered what they said, that I would be killed if I didn’t go back they told me to. I knew that in the past they had killed people and taken people who had never come back home. I go back to my house and the military people are there and they take me back to the camp in a jeep.

26.    When they took me back I saw that there was some training going on at the military camp and there were some superior officers there. The people in the jeep who took me handed me over to Bandara and they left. Bandara took me outside of the camp again to the abandoned houses. He sexually assaulted me again but this time it was not penetration, it was oral sex. I think he did not rape me again because the superior officers were there and he was in a hurry. Then he just left me there. I was walking home again and saw a friend on a bike who gave me a lift home.

(Errors in original)

51    After describing some of the events that occurred after 2010, the appellant then described the second occasion in 2012 when he was detained by the CID, as follows:

30.    After 2010 and the rape, I tried to be away as much as could, I went to India for business as much as I could. I was fisherman but I became a trader and shipped fish from the east coast to Colombo. My family also had two grocery shops. I went to India to bring medical equipment back and sell it. This was another business. But the military thought that I was carrying messages for the LTTE from India and they arrested me. I released that they thought this about me when they arrested me.

31.    In 2012 on October 9th (best belief of date) they military took me and kept me imprisoned for three days. They took me from my village in handcuffs in a jeep but I don’t know exactly where we went. I believe the place is called Fort Miley Post but I don’t know for sure. They interrogated me and asked me questions like why I was giving messages to the LTTE and why I was sharing information with them. I said I was not doing these things. After that they demanded money to let me go and if don’t give money they will kill me. I have heard that a lot of people have never returned home from this place.

32.    I have a scar on my shoulder. The people interrogating me used the branch of a tree as a cane and beat me. They beat me so hard it broke the skin on my arm. They also used their hands to hit and slap me. I was bruised over my body.

33.    I was released. I didn’t know at the time, but my dad had paid a ransom of 12,000 rupees to get me. After they released me and I arrived home, another group of people without uniforms came to my home. This group interrogated me about why I had been taken to the Fort Miley Post and if we had given them money and said that we should give them money. They were not in uniform but they had weapons. They also arrested me and took me to an open ground area, and threatened me that I should give the money to them. We didn’t give any money to them. When they didn’t get any money, they released me.

34.    I don’t know for sure but I think this group belongs to Karura Group. He was former LTTE leader who later formed with the government to hunt down LTTE.

(Errors in original)

52    Thereafter, the appellant proceeded to explain why he thought the Sri Lankan government would not provide protection for him, as follows:

37.    I am unable to rely on the Sri Lanka government for protection. I am Tamil and it is the Sri Lanka government that has persecuted us. The new government has the same type of polices when it comes to minorities. The discrimination is everywhere and I would have to pretend that I am not Tamil. But if they check my identify card they will see that I am Tamil.

38.    I was harmed by the people that were meant to be protecting me. There was no one I could go to say what had happened or seek justice.

(Errors in original)

53    Finally the appellant described the risk of future harm that he feared he would suffer should he return to Sri Lanka in the following terms:

39.    I know that the CID is still after me because they believe that I am connected to the LTTE. I know this because even after I left Sri Lanka they have gone to my home in search of me. This has happened at least twice. My family has not told them that I am in Australia but just that [I have] left home and [they] don’t know where [I am]. The CID then scolded my family with filthy words. This would have happened in about 2014.

40.    My father is quite influential because he is a local businessman and he has been to the local MP, when the new government came to power, and talked to the MP about me going back to Sri Lanka but the MP said that no he cannot come back, we cannot help you if the CID is involved in your son’s case. This was in about 2015.

41.    I have many newspaper cuttings that show Tamils are still being killed in Sri Lanka. I would love to be with my family but I cannot go back, I must sacrifice that because of the fear.

42.    I think that they (military) targeted our family. My father is relatively wealthy, he had two shops and owned some land, and they would have known we had money and could pay a ransom, This will still happen.

43.    I cannot live safely there. I will be killed by the CID. Those military camps are still there, the same people who have harmed me.

(Errors in original)

54    It can be seen from this statement that, with respect to the first incident “when [he] was 20 years old” (sic – in 2010, see at [60(20)] below), the appellant said that the reason he was detained was because “they suspected [he] was connected to the LTTE” (see [50(20)] above). Furthermore, with respect to the rape that he said was inflicted on him during that period of detention, he sought to draw a distinction between the people who detained him and the person who raped him. He said “he was another person in the camp. He didn’t have a uniform but he appeared like an officer, like someone in charge” (errors in original) (see [50(21)] above). He did, however, qualify that statement by saying “I believe that the military people in the camp knew Bandara was taking me there and why. Before he took me he went and talked to the military people and from that conversation I thought they know why he is taking me” (errors in original) (see [50(23)] above). Nonetheless, in those passages of his Statement, he did not make any express or implied reference to fearing harm based on his sexual orientation or preference whether actual or perceived.

55    Similarly, with respect to the 2012 incident, the appellant only relied upon his suspected LTTE connections. He said that “[t]hey interrogated [him] and asked [him] questions like why [he] was giving messages to the LTTE and why [he] was sharing information with them” (errors in original) (see [51(31)] above). Again, in that part of his Statement, there is no mention of his sexual orientation or preference, nor, for that matter, any mention of the 2010 incident.

56    Finally, it is significant that, in his Statement where he describes his views about the lack of protection that would be provided to him by the Sri Lankan government and the reasons why he feared harm should he return to Sri Lanka, while he generally mentioned that the Sri Lankan government persecuted Tamils and that “discrimination is everywhere” and he specifically mentioned that “they believe that [he was] connected to the LTTE”, he did not anywhere refer to any discrimination, or fear, based upon his sexual orientation or preference (see at [52] and [53] above).

57    Thirdly, and consistently with the above, in his subsequent SHEV interview, the transcript reveals that he claimed he was detained by the CID in 2012 because he was suspected of having connections with the LTTE (see page 4, line 33 at [18] above and page 8, line 11 at [19] above). Furthermore, in his description of the 2012 incident in that interview, he did not anywhere mention either the 2010 rape and sexual assault incidents or his sexual orientation or preference (see at [18] above).

58    Which brings me to the closely confined parts of all this material where the appellant does mention his sexual orientation or preference, namely those parts of the two pages of the SHEV interview transcript which he has focused on in his particulars to this ground above. It is unnecessary to repeat the observations I have already made above about those parts of that transcript (see at [47]). It is, however, worth adding these observations about the exchange that occurred between the interpreter and the interviewing officer at page 11 of that transcript (see at [20] above). First, it is clear from the transcript that it was the interpreter, not the appellant, who raised concerns about the translation, particularly whether he or she may have used the wrong words (see page 11, lines 12–13 at [20] above). In the passages that follow, it is apparent that the interpreter has sought to clarify in his or her mind whether he or she had properly described the incident as a rape. The transcript then records, without further detail, “[Brief discussion between interpreter and [appellant]]” (italics in original). What occurred during that discussion could presumably be ascertained by listening to the audio recording of the interview, as the Authority did. Thereafter, it is apparent from the transcript that the interpreter was satisfied that the incident should be properly described as a rape. Significantly, the appellant’s only involvement in that part of the interview, apart from the untranscribed brief discussion referred to above, was to make the statement after the interpreter appears to have resolved the issue in his or her mind: “I am not a transgender, I’m not a gay, yeah” (page 11, line 43 at [20] above).

59    This confusion surrounding the accuracy of the translation during the SHEV interview raises a matter that should be mentioned at this point. As has already been mentioned above, in conducting its review, the Authority not only considered the terms of the transcript of the SHEV interview, but it also took the extra step of listening to the audio recording of that interview. It apparently did so, not to clarify the ambiguities in the SHEV transcript upon which the appellant has relied, but to address concerns the appellant had raised before it with respect to “statements [made] in his previous interviews that were ‘inconsistent’” (Reasons at [27]). And further, to “‘translation errors’ in [his] SHEV statement itself due to lack of resources at the community legal centre that assisted him” (Reasons at [28]). Having done so, the Authority concluded (Reasons at [29]):

I accept that some of the above noted inconsistencies are minor and could be attributed to interpreting errors. I also accept that a person who previously suffered sexual abuse may have been unable, at that time, to disclose that information for many reasons including continued trauma, shame, and/or a lack of understanding of cultural and legal approach to reporting of sexual assaults in Australia. However, I am not persuaded that those reasons adequately account for the other discrepancies in the [appellant’s] evidence which I find not insignificant …

60    Two of the “not insignificant” inconsistencies the Authority mentioned were “in relation to the year that he was detained by the military for three days, [and] whether he was physically assaulted during that three-day period” (Reasons at [29]). These two inconsistencies appeared as the second and third in the eight inconsistencies (Reasons at [19]–[26]) which, in the Authority’s view, undermined the credibility of the appellant’s claims (Reasons at [18]). That view led to the Authority’s conclusion that the appellant “was not recalling a genuine personal experience in relation to the events between 2010 and 2012” (Reasons at [30]). Specifically, those two inconsistencies were (Reasons at [20] and [21]):

20.    Secondly, there were inconsistencies as to when he was first taken to the military camp. In his SHEV statement the [appellant] said he was taken when he was 20 years old. I note the [appellant] turned 20 on 8 January 2011. Later in the SHEV statement, he indicated that he was first detained in 2010. In the SHEV interview, the [appellant] advised he was taken on 8 February 2010.

21.    Thirdly, the [appellant’s] claims of twice being sexually assaulted when he was detained was not mentioned in the entry interview. In his SHEV statement, the [appellant] stated that he could not bring himself to talk about the sexual assaults when he first arrived in Australia, but following consultation with a lawyer he realised that he needed to truthfully declare the events that occurred. He advised the delegate in the SHEV interview that he was scared to mention the sexual abuse earlier because he had concerns in relation to the confidentiality of that information.

61    Having regard to all of the matters surveyed above, I do not consider the ambiguities to which the appellant has pointed in the SHEV interview transcript were of such a nature that they placed an obligation on the Authority to consider exercising its discretion under s 473DC of the Act to obtain information from the appellant to clarify them. Alternatively, even if such an obligation did arise, given their content and the broader context in which they were expressed as outlined above, I do not consider that those ambiguities provided the factual foundation for the conclusion that the Authority unreasonably failed to consider exercising the abovementioned discretion. It follows that I do not consider the appellant has discharged his onus to establish the unreasonableness to which this ground of appeal relates.

CONCLUSION

62    For these reasons, I do not consider that the appellant has established that the primary judge erred by failing to provide adequate reasons for his decision (ground of appeal 3) and nor do I consider that he has established that the primary judge erred by failing to find that the Authority acted unreasonably in failing to exercise its discretion under s 473DC of the Act to seek further information from the appellant in respect of his statements in the SHEV interview concerning his sexual orientation or preference (ground of appeal 1). It follows that the appellant’s notice of appeal must be dismissed with costs.

63    The orders will be:

1.    The notice of appeal filed 20 December 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

Associate:    

Dated:    13 September 2019