FEDERAL COURT OF AUSTRALIA

DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders by made a judge of the Federal Circuit Court of Australia, dismissing an application for judicial review of a decision made by the second respondent, the Immigration Assessment Authority, referred to by his Honour as the IAA. The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (now known as the Minister for Home Affairs), to refuse the grant of a class of protection visa to the appellant. The appellant had made an earlier, invalid, application for a protection visa in July 2013, attached to which was a statutory declaration made by the appellant in support of his application.

2    Section 473CB(1) of the Migration Act 1958 (Cth) provides that the third respondent, the Secretary of the Minister’s Department, must give to the Authority “review material” in respect of each “fast track reviewable decision” that is referred to the Authority under s 473CA. Section 473CB(1) then lists the items that fall within the description of “review material”, including, per paragraph (c), “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.

3    The primary judge summarised the issue before his Honour as being (at [1]):

… whether, when affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV), the second respondent (IAA) made a jurisdictional error because a statutory declaration the applicant made that formed part of a previous but invalid application for a protection visa was not included in the material that was given to the IAA purportedly pursuant to s.473CB of the Migration Act 1958 (Cth) (Act).

4    The primary judge found that while the Secretary (via an officer of the Department) had not considered whether to refer the statutory declaration provided in support of the prior invalid protection visa application (2013 statutory declaration), on the proper construction and application of s 473CB(1)(c), that provision had not been breached in all the circumstances. These circumstances included the subsequent valid SHEV protection visa application being supported by a later statutory declaration (2015 statutory declaration) which included identical information to that relied upon for his judicial review challenge. In the alternative, his Honour held that even if there had been such a breach, this did not give rise to any jurisdictional error because the 2013 statutory declaration being before the Authority could not have made a difference to the outcome of the Authority’s review.

Before the primary judge

5    The primary judge provided a concise but thorough summary of the facts and circumstances as follows (at [2]-[11], footnotes omitted):

The applicant is a national of Sri Lanka, a Tamil, and a Christian. He arrived in Australia on 20 August 2012 as an unauthorised maritime arrival. The applicant was detained and underwent a “biodata” interview [on 20 August 2012], and, later, an “Irregular Maritime Arrival Interview” [on 16 January 2013]. On 31 January 2013 the applicant was granted a Temporary Humanitarian visa.

On 16 August 2013 the applicant, with assistance, lodged a form of application for a Protection (Class XA) visa (purported PC Application) with the Department of Immigration and Border protection (as the Department of Home Affairs was then known) (Department of Immigration). The applicant included in that application a statutory declaration in which he set out his claims for protection (2013 Statutory Declaration).

By letter dated 26 May 2014 the Department of Immigration informed the applicant’s representative that the application the applicant lodged “is not currently a valid application”; and that it was invalid because of s.46(2A) or s.91K of the Act or both (as those provisions stood at the time the applicant purportedly applied for a protection visa). The letter further stated that the applicant was prevented from lodging a valid application unless the Minister agreed to lift the bar provided for by those provisions. The letter concluded:

When the Minister makes a decision, you will be notified and requested to lodge the Visa Application Charge (VAC) for your respective clients within a certain timeframe, when that payment has been correctly made it will render the application valid.

Even though the Department of Immigration treated the purported PC Application not to be a valid application for a visa, the Department of Immigration opened and maintained a file in relation to it. The file contains a copy of the purported PC Application, including the 2013 Statutory Declaration, a copy of the Department of Immigration’s letter dated 26 May 2014, a notification from the applicant’s representatives that they were no longer acting for the applicant, and a request for the payment of the costs of certain health services to the applicant.

By letter dated 17 August 2015 the Department of Immigration sent a letter to the applicant, the opening paragraph of which is as follows:

You have previously submitted a purported application for a subclass 866 Permanent Protection visa. However, as you have arrived in Australia unlawfully and you were affected by one or more application bars in the Migration Act, this application was invalid and cannot be processed any further. We have returned a copy of your original application form to you with this letter.

The letter then referred to changes in the law about the protection application process for certain illegal maritime arrivals, identifying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). After referring to the “Fast Track Assessment process”, the letter referred to the applicant’s having entered Australia as an unauthorised maritime arrival, and, therefore, to the applicant’s being prevented by s.46A(1) of the Act from lodging a valid application for any visa while in Australia. The letter then stated that the Minister had exercised the power under s.46A(2) of the Act to allow the applicant to lodge a valid application for a Temporary Protection (subclass 785) visa (TPV) or a SHEV, and the applicant was invited to lodge an application for a TPV or a SHEV within 28 days.

The applicant applied for a SHEV on 17 September 2015. It was accompanied by a statutory declaration made by the applicant in which he stated his claims for protection (2015 Statutory Declaration). The 2015 Statutory Declaration is largely identical with the 2013 Statutory Declaration. The applicant made the following claims:

a)    The applicant was born in Jaffna where he lived until 1996 when he and his family moved to Vanni. The applicant stayed there for two years when he moved to Mannar.

b)    In 2006, while the applicant’s mother, father, and brother were driving by motorbike, a “white van came and rounded them up”. The applicant’s father was beaten as a result of which he was badly injured, lost one eye, and stopped working.

c)    While in Mannar the applicant’s cousin was forced to join the Liberation Tigers of Tamil Eelam (LTTE). The cousin fought, he was injured, and taken prisoner by the Sri Lankan Army (SLA) who detained him until [date]. After his release the applicant’s cousin stayed with the applicant. In the meantime the applicant’s cousin’s brother was taken by the SLA on suspicion of being a member of the LTTE.

d)    While the applicant’s cousin stayed at the applicant’s house the Sri Lankan “intelligence authorities” came to the applicant’s house regularly, and they questioned him accusing him of being in the LTTE and helping them. He was invited to attend an intelligence camp under the pretence of requesting him to carry out mechanical work, but when he arrived he was interrogated and tortured. They threatened to do to the applicant what they did to the applicant’s cousin. The applicant was released but the applicant attended the camp on a further four occasions during which he was interrogated and, on one occasion, again tortured.

e)    The applicant then realised it was not safe for him to stay in Sri Lanka. On the advice of his mother the applicant left Sri Lanka and came to Australia by boat.

The delegate did not accept the applicant’s claims and, on 1 April 2016, rejected his application for a SHEV. Although the delegate accepted it was plausible that in 2008 the applicant might have been detained for a brief time for questioning about [an event] in [a place], the delegate did not accept the applicant had been repeatedly detained, tortured, and accused of being a LTTE supporter or potential bomb maker. Nor did the delegate accept that the applicant’s cousin’s brother had been detained. The delegate found the applicant had provided contradictory evidence regarding the instances he claimed to have been detained.

The delegate’s decision was referred to the IAA on 4 April 2016. There is in evidence a copy of a document titled “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” (Checklist). The Minister produced this document in answer to a notice to produce which called for the production of, among other things, “correspondence including emails relating to the constitution and provision of ‘review material’ by the secretary to the Authority pursuant to s 473CB Migration Act”. Under the heading “File format”, the Checklist states that the “applicant file is contained in a PDFP”, which the Checklist notes stands for “PDF Portfolio”. Under the heading “The PDFP contains the following material” there is a table divided into three columns. The first column, which is headed “Description”, describes documents, the second, which is headed “Status”, provides for the noting of “Yes”, “No”, or “N/A”, and the third is titled “Non-disclosure considerations”. Relevant to the proceeding before me is the document the Checklist describes as “Any referenced visa applications made by the applicant” to which the status of “N/A” is assigned.

The IAA accepted the applicant’s cousin fought with the LTTE, that the cousin suffered serious injuries, later released from a rehabilitation camp, and, when released, came to live with the applicant’s family who cared for him. The IAA also accepted that authorities visited the applicant at his home about two months after the applicant’s cousin had been released, and again one week later. The IAA did not, however, accept that the applicant was questioned or tortured. The IAA particularly relied on the applicant’s failing to mention having been tortured until he lodged his application for a SHEV in September 2015.

6    The Authority’s reasons at [63], being the portion referred to in the last sentence of the primary judge’s reasons reproduced above, was as follows, to which may be added [64]-[66]:

[63]    I accept that victims of torture and trauma may find it difficult to recall or provide details of their experiences, however, the applicant did not even mention claims of questioning and torture until he lodged his SHEV application in September 2015. The applicant was provided with a Tamil interpreter at the biodata interview and the entry interview as well as at the SHEV interview [on 11 November 2015].

[64]    I consider it implausible that given his claims of four or five questionings, including being tortured twice, the applicant did not mention these events either at the biodata interview (where he said there was “no guarantee for [his] life” and he “fears the Sri Lankan Army”) and in the entry interview (where he mentioned the abduction of [a person] and the applicant’s questioning, in 2008, regarding [an event]).

[65]    I accept that the biodata interview form asks the applicant to set out his reasons for seeking protection in one sentence. If a request for brevity resulted in this omission, the applicant had another opportunity to mention these events at the entry interview which was conducted some five months later.

[66]    Having listened to the recording of the entry interview, I am satisfied that the applicant was afforded ample opportunity to set out claims of torture and frequent questioning by the authorities. He was not hurried or asked to keep his answers brief and, at the end of the interview, the applicant was asked if there was anything else he wanted to say and he replied in the negative.

7    The primary judge considered that the application for judicial review gave rise to four questions, which his Honour listed as follows (at [18]):

(a)    Did the Secretary consider whether the 2013 Statutory Declaration was relevant to the review?

(b)    If (a) is answered in the negative, did the Secretary fail to comply with s.473CB of the Act?

(c)    If (b) is answered in the positive, was the IAA’s decision affected by jurisdictional error?

(d)    If (a) is answered in the affirmative, was it reasonably open to the Secretary to consider the 2013 Statutory Declaration not to be relevant to the review?

8    In relation to the first two questions, the primary judge found that the Secretary (via an officer of the Department):

(1)    did not consider the relevance of the 2013 statutory declaration (either by reason of the person who completed a checklist of materials to be referred to the Authority not turning his or her mind to whether a prior protection visa application had been made, so was not aware of the existence of the 2013 statutory declaration, or if he or she was aware of its existence, did not consider whether it was relevant); and

(2)    did not consider it relevant to search for materials that showed that the appellant had previously made an application for a protection visa, including such an application that was not valid.

The primary judge concluded that this was not in breach of s 473CB of the Migration Act because the Secretary was entitled to proceed upon the basis that a protection visa applicant included in the application all of his claims for protection, and because the Minister is not to consider an application that is not valid pursuant to s 47(3).

9    The primary judge then considered the remaining two questions upon the basis that the Secretary had not complied with s 473CB, being a basis contrary to his Honour’s conclusion summarised above that there was no breach of that provision.

10    As to the third question, his Honour found that the Authority’s jurisdiction is not conditioned by strict compliance with s 473CB(1)(c) if the material in question could not have made a difference to the outcome of the Authority’s review of the delegate’s decision. His Honour found that in this case there was no material difference between the appellant not having made claims of questioning and torture until his 2015 statutory declaration, and not having made those claims until his 2013 statutory declaration, because the key fact relied upon by the Authority is that those claims were not made at the time of his biodata and arrival interviews.

11    In relation to the fourth question, the primary judge found that it would have been reasonably open to the Secretary to consider that the 2013 statutory declaration was not relevant under s 473CB(1)(c) because the information in it was reproduced in identical terms in the 2015 declaration that was given to the Authority. The primary judge also held that it would have been open to the Secretary to consider that the applicant’s claims made in the 2015 Statutory Declaration represented his claims in their entirety and so, for that reason, the 2013 Statutory Declaration was irrelevant.

This appeal

12    The appellant filed an amended notice of appeal in respect of the primary judge’s decision, which contained two grounds in respect of the Secretary’s obligation under s 473CB(1)(c).

Ground 1 – asserted error in failing to find a breach of s 473CB(1)(c)

13    The substance of the appellant’s arguments on this ground of appeal are that:

(1)    the primary judge’s finding summarised at [8(1)] above that the Secretary had not considered the relevance of the 2013 statutory declaration was sufficient to establish a breach of s 473CB(1)(c), because that provision is cast in mandatory terms; and

(2)    the primary judge’s finding summarised at [8(2)] above that the Secretary did not consider it relevant to search for an earlier (invalid) application for a visa also established a breach of s 473CB(1)(c) insofar as it is thereby implicit that the Secretary was not aware of the 2013 statutory declaration.

14    The appellant also submits that the 2013 statutory declaration was self-evidently so inherently relevant to the review required to be conducted by the Authority that its absence was proof that its relevance had not been considered in breach of s 473CB(1)(c), citing SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123 at [54].

15    Thus, the appellant’s case turns on the proposition that actual evaluation of the relevance of a document in the Secretary’s possession or control was indispensable in discharging the mandatory obligation imposed by s 473CB(1)(c). While the appellant accepts that this obligation of evaluation could not possibly extend to all documents held by the Department and thus in the Secretary’s possession or control, he took the stance that whatever might legitimately be excluded from consideration, by whatever criteria, this could not exclude his invalid protection visa application and thereby the 2013 statutory declaration, being documents that concern him personally. The live issue for determination is therefore whether the appellant has established that it was a breach of s 473CB(1)(c) for the Secretary not to have considered whether the 2013 statutory declaration could be relevant to the review to be conducted by the Authority.

16    The Minister does not dispute that a breach of s 473CB(1)(c) may, in appropriate circumstances, give rise to a jurisdictional error, citing CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61, which in turn endorsed the summary of principles applicable to that provision by Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41]-[42]: see CQR17 at [28] per Jagot J (with whom Reeves J agreed); see also Derrington J at [80]. The relevant principle to emerge from EMJ17 at [41(4)], endorsed by CQR17, is that an “unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c)”. This statement of principle is expressed in suitably qualified terms, because the conclusion to be reached is inevitably dependent on the circumstances of a given case.

17    In CQR17, it could not be shown that the documents in question had not been considered, such that the real question in that case was whether it was legally unreasonable for the Secretary to have concluded that those document were not relevant: see [34]. The appellant sought to distinguish CQR17 to the extent that this case had the benefit of evidence of the Department’s processes in assembling the “review material” to be given to the Authority, so the primary judge here was able to conclude that the relevance of the 2013 statutory declaration had not been considered. The facts are distinguishable, but the principles remain relevant.

18    The Minister describes the appellant’s case as positing too simplistic an equivalence between the uncontested factual findings by the primary judge that the Secretary had not considered the relevance of the 2013 statutory declaration and finding a breach of s 473CB(1)(c). Rather, the Minister submits:

(1)    the language and necessary operation of s 473CB(1)(c) reveals that the live issue raised by this ground of appeal is the “domain” of documents to which the Secretary’s consideration must be applied;

(2)    the primary judge held that this had to extend beyond the documents of which the Secretary was actually aware to those documents required to be collated because they may be relevant to the review by the Authority;

(3)    that wider ambit was correctly derived by the primary judge from the language of s 473CB(1)(c) referring to documents both in possession or control, and considered to be relevant to the review;

(4)    the primary judge thereby identified the required process in this case as being referrable to a valid visa application that was subject to a “fast track reviewable decision”, as defined in s 473BB;

(5)    the 2013 statutory declaration related to an invalid application that the Minister was required not to consider under s 47(3) of the Migration Act;

(6)    despite being given a copy of the invalid application at the time he was told that the bar to making a protection visa application had been lifted, per the letter from the Department dated 17 August 2015, the appellant did not rely upon the 2013 statutory declaration, either in support of his valid visa application or at any later time before the delegate, so as to bring it within s 473CB(1)(b) of the Migration Act;

(7)    for those reasons, the 2013 statutory application was not within the domain of documents reasonably required to be considered under s 473CB(1)(c), and accordingly there was no breach; and

(8)    it therefore follows that the primary judge did not err in concluding that a breach of s 473CB(1)(c) had not been established.

19    The Minister’s submissions must be accepted. Section 473CB(1)(c) cannot possibly be interpreted in a way that requires the Secretary to consider all the Departmental material in his or her possession and control, not least because of the sheer size and ambit of the Department’s operations and responsibilities in administering Australia’s migration laws. Statutory construction is therefore required to decide the metes and bounds of what must be carried out so as to comply with s 473CB(1)(c).

20    The necessary meaning to be attributed to s 473CB(1)(c) is principally to be ascertained by its text, aided by its context, including the general purpose and policy standing behind it: Alcan (NT) Alumina Pty Ltd v Commissioner of Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47], expressly applied by the primary judge. It is not necessary to decide whether each and every aspect of the reasoning of his Honour in that respect is of universal application to the operation of s 473CB(1)(c). It suffices to observe that, in applying Alcan, his Honour was correct to conclude that:

(1)    the words of s 473CB(1)(c) go no further than requiring the Secretary to give to the Authority material considered relevant to its review, which taken in isolation tends to suggest that this is confined to documents of which the Secretary is personally aware;

(2)    however, the following contextual considerations lead to construing s 473CB(1)(c) to require consideration of more than the material of which the Secretary in person was actually aware:

(a)    the importance of a valid visa application, which is required to be considered, and an invalid visa application which is required not to be considered: see s 47(1) and (3) of the Migration Act respectively;

(b)    the provisions of Pt 7AA, including in particular the obligation to refer “fast track reviewable decisions” to the Authority, and the obligation to give it “review materials” as listed in s 473CB(1);

(c)    the nature and role of the Secretary under s 57 of the Public Service Act 1999 (Cth), including the responsibility under s 57(2)(c) to implement measures directed at ensuring that the Department complies with the law; and

(d)    judicial notice had to be taken of the size and complexity of the Secretary’s Department, and therefore that it is unlikely that he or she would personally be considering particular materials with a view to conducting the necessary consideration.

21    The primary judge found that the system that the Secretary’s Department had in place, including in particular the checklist deployed, supported an inference that the Department did not consider it necessary to search for materials that showed that the appellant had previously made an application for a protection visa, including in particular an invalid application. His Honour found that it was reasonable not to have made a search for such documents because the Secretary was entitled:

(1)    to proceed upon the assumption that the appellant had intended to, and did, include in his valid visa application all of the claims for protection that he relied upon; and

(2)    not to search for invalid visa applications in light of the prohibition on the delegate from considering an invalid application, whose decision was to be the subject of the review by the Authority.

22    I can see no error in the primary judge’s reasons as summarised above, at least insofar as it is confined to the present facts involving an invalid prior visa application (the situation of a prior valid visa application of some kind not being part of the present case). To the contrary, I agree with his Honour. It could not have been a breach of s 473CB(1)(c) for the Secretary not to consider whether a document forming part of, or supporting, an invalid visa application, forbidden to be considered at all by the delegate, could be relevant to the review of the delegate’s determination of the later, valid, visa application.

23    It was a matter for the appellant to bring forward any such material in support of his valid visa application so as to place it beyond the prohibition in s 47(3), having been given ample opportunity to do so when he was given a copy of that invalid application when he was invited to make a fresh, valid, application. He chose not to do so, although he did refer to his 2013 statutory declaration in a third statutory declaration dated 1 May 2016 at [5], but did not attach a copy and made no submissions about the inconsistencies that had already been identified by the delegate in respect of the questioning and torture claims by reference to the 2015 statutory declaration. That third statutory declaration was provided well after the operation of s 473CB(1)(c) was exhausted.

24    This ground of appeal must therefore fail.

Ground 2 – error in finding in the alternative that any breach of s 473CB(1)(c) was not material

25    Strictly speaking, this ground of appeal does not arise and thus require determination in light of the above finding that there was no breach of s 473CB(1)(c). However, in deference to the efforts of counsel, it is appropriate to address this ground of appeal in the alternative.

26    The appellant submits that the 2013 statutory application went to his credibility in a review process that ordinarily did not give him any opportunity to appear at an oral hearing. He therefore submits that if it was a breach of s 473CB(1)(c) not to give it to the Authority, that breach gave rise to a jurisdictional error. He submits that the Authority reasoned, at [63] and in the absence of the 2013 statutory declaration, that he had not mentioned claims of questioning and torture “until” he lodged his valid visa application in September 2015, referring to his 2015 statutory declaration, when in fact they were first raised 26 months earlier in July 2013.

27    This aspect of the appellant’s case suffers from two related problems. First, he relies on [63] of the Authority’s reasons divorced from the context of [64]-[66]; and secondly, the primary judge did have regard to that context, at least as to [64]. His Honour said at [40] (footnotes omitted):

The IAA found it implausible that given the applicant’s claims that he had been questioned and tortured he did not mention them in the biodata interview or at the Irregular Maritime Arrival Interview. Thus, what the IAA considered significant when arriving at an adverse assessment of this part of the applicant’s claims was not that the applicant first made the claims of questioning and torture in 2015 when he applied for a SHEV; what the IAA considered significant was that the applicant did not mention those claims either at the biodata interview or at the Irregular Maritime Arrival Interview. Given the IAA’s reasoning, the IAA would have attached no less significance to the applicant’s not having made the claims of questioning and torture at either the biodata interview or at the Irregular Maritime Arrival Interview had the IAA been aware that the applicant first made those claims in 2013 when he made the Purported PC application, rather than in 2015 when he applied for a SHEV.

28    The only temporal reference to the timing of the later claims that were inconsistent with the biodata interview and the entry interview appears at [63], being the reference to “until” the appellant lodged his SHEV application in September 2015. This is no more than another way of seeking to take [63] out of context, which is a non-beneficial, if not perverse, way to read the Authority’s reasons. If needed, a beneficial reading is required: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. However it is doubtful that a contextual reading is even especially beneficial, as opposed to literal. The word “until” in [63] does not do the work that appellant relies upon for this variation of his argument, once regard is had to the context of [64]-[66]. The Authority made the adverse credibility finding because the later claims were not included in either the biodata interview or in the entry interview. That omission did not turn on precisely when the additional claims were made, but rather that they were not even mentioned at the time the Authority, in effect, found that they would have been if genuine, in the context of other claims that were made as to the fears he held. That is what the primary judge was referring to in the last sentence of [40] of his Honour’s reasons, reaching the conclusion that the Authority knowing that the additional claims had been made in July 2013, rather than only later in September 2015, could not have made any difference.

29    The appellant also submits, as a variation of this point, that adverse credibility findings were drawn from the appellant making inconsistent claims at his 11 November 2015 SHEV interview with the delegate when measured against his September 2015 statutory declaration made only two months earlier (as opposed to his September 2013 statutory declaration made over two years earlier). These inconsistencies included the number of times the appellant had been taken for questioning and the length of time he was held for questioning on particular occasions. On the appellant’s case, had the Authority known that the appellant had made these claims much earlier in July 2013, rather than only two months prior to the SHEV interview in September 2015, its assessment of the significance of the inconsistencies could have been different. This argument goes nowhere, because the appellant had still signed the later statutory declaration in September 2015, so the comparison by the Authority between the claims made in September 2015 and the interview with the delegate in November 2015 remained valid.

30    After the primary judge’s decision, the High Court decided Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599. The majority (Bell, Gageler and Keane JJ) said on the topic of materiality (at [45]-[46]):

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

31    The appellant was unable to establish any error in the primary judge’s reasoning except by taking issue generally with the conclusion reached by his Honour. In particular, the appellant has not demonstrated that, had the 2013 statutory declaration been given to the Authority under s 473CB(1)(c), it could realistically have resulted in a different decision.

32    Moreover, as the Minister points out in relation to materiality, the appellant failed before the Authority on two other independent grounds, namely that had he been tortured and questioned as claimed, he would not have continued to live at home and go to his usual place of work for more than 12 months before leaving Sri Lanka; and he was not detained under the Sri Lankan Prevention of Terrorism (Temporary Provisions) Act 1978 or questioned by the authorities in that period.

33    There was no error on the part of the primary judge in concluding that the absence of the 2013 statutory declaration was not material to the Authority’s decision. This ground of appeal must therefore fail.

Conclusion

34    As both grounds of appeal have failed, the appeal must be dismissed. The appellant must pay the Minister’s costs.

Associate:

Dated:    27 May 2019