FEDERAL COURT OF AUSTRALIA

DIN16 v Minister for Home Affairs [2020] FCA 406

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): DIN16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 1150 (DIN16). The Authority had affirmed a decision of a delegate of the first respondent (Minister) made on 29 July 2016 refusing the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

Background

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity and the Hindu faith.

3    The appellant departed Sri Lanka illegally by boat and arrived in Australia on 20 September 2012. On or about 15 January 2016 the appellant lodged his application for a SHEV.

4    The appellant’s claims were set out in a statement dated 8 September 2013 annexed to his application. The appellant claimed that:

(1)    in August 2012, while working as an apprentice goldsmith in Colombo, he was the subject of an attempted kidnapping by four men in a white van. While the appellant managed to escape his former employer’s son was taken. The appellant recognised one of the men in the white van as his former employer’s brother-in-law (Uncle);

(2)    the appellant went immediately to the main bus station and travelled to Negombo where he went into hiding at a relative’s home;

(3)    the next day the appellant was informed by his sister that five Sinhalese men had visited the family home where the appellant lived and, as nobody was home, had enquired of the neighbours about the appellant’s whereabouts. The men returned each day for three days looking for the appellant;

(4)    after the appellant left Sri Lanka he was in contact with his sister who informed him that the group of Sinhalese men had returned to their home looking for him on five occasions;

(5)    as a result of the visits by the Sinhalese men the appellant’s sister also went into hiding at the home of a relative; and

(6)    the appellant fears that if he returns to Sri Lanka he will be detained and killed by the Uncle and the Sinhalese men who were searching for him.

5    On 29 July 2016 a delegate of the Minister (Delegate) refused to grant the appellant a SHEV. In summary, the Delegate:

(1)    accepted that the appellant’s former employer’s son was abducted in 2012 and that Sinhalese men visited the appellant’s home looking for him. However, the Delegate concluded that the identity of the abductors and their motive were unclear. The Delegate was not satisfied the appellant was of adverse interest to any individual or group in relation to the abduction and did not accept as credible that the appellant’s sister has been harassed by any individual or group searching for the appellant in relation to the abduction;

(2)    was satisfied that the appellant would not be harmed by the Sri Lankan authorities or paramilitary groups or anyone else upon return to Sri Lanka in the reasonably foreseeable future on the basis of his Tamil ethnicity alone;

(3)    found that there was no evidence to indicate that members of a paramilitary group were searching for him and was not satisfied that the appellant was of adverse interest to any individual or group or that he continued to be of any adverse interest to any individual or group in relation to the abduction;

(4)    considered the appellant’s claims about his illegal departure from Sri Lanka but was not satisfied that he would face harm amounting to persecution upon return to Sri Lanka arising out of that illegal departure combined with his asylum claims in Australia;

(5)    found that effective state protection would be available to the appellant if he was subject to harassment by paramilitary groups or non-state actors and that he would not be denied state protection on return to Sri Lanka on the basis of his Tamil ethnicity or for any other reason; and

(6)    concluded that the appellant is not owed protection under the refugee or complementary protection criteria.

6    On 1 August 2016 the Delegate’s decision was referred to the Authority under Pt 7AA of the Migration Act 1958 (Cth) (Act).

Proceeding before the Authority

7    On 1 September 2016 the appellant’s representative provided a submission (Submission) to the Authority commenting on the Delegate’s finding that the appellant has effective protection in Sri Lanka. The Submission referred to the United Nations General Assembly report dated 28 September 2015 titled “Comprehensive Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka” (UN Report), which it noted was available to the Delegate, and included a quote from p 14 of that report. It then continued:

It is well documented that Sri Lankan authorities use white vans to abduct people. The authorities were somehow involved in the abduction the applicant witnessed and he was not privy to the motivation for the abduction and therefore cannot adequately answer any such questioning on motivation. And as noted above there is no reliable witness protection scheme in Sri Lanka so it cannot be said that the applicant has effective protection for the Sri Lankan authorities. Furthermore, there would be no where in Sri Lanka that the applicant could relocate as authorities have full control over the whole of Sri Lanka.

8    At [3] of its decision record the Authority referred to the Submission and noted that it and the country information cited in it did not contain new information and that it “considered these matters in weighing [the appellant’s] case”.

9    The Authority accepted that the appellant is a Tamil male born in Batticaloa, Eastern Province, Sri Lanka who worked as an apprentice goldsmith between 2008 and 2012 and was employed by a wealthy Tamil and well-known businessman in the community referred to as “V”. The Authority also accepted that V’s son had been abducted, noting that extortion or ransom may have been a motive for the abduction.

10    However, the Authority had considerable doubts that the Uncle was involved in the abduction or that a group of unknown Sinhalese men have continued to seek out the appellant in relation to that incident. The Authority outlined the evidence which led it to reach that conclusion noting, at [13] of its decision record, that it did not accept that the appellant identified the Uncle as one of the men in the van and that it found it implausible, in the context of the incident, that the appellant would have been able to determine that it was the Uncle who was inside the van. The Authority also did not accept the “very late claim” made to it that the authorities may have been involved in the abduction, finding that claim to be speculative and unsupported by any of the evidence.

11    In light of those findings the Authority also had concerns about the plausibility and credibility of the incidents the appellant said had followed, namely that the day after the incident the appellant was informed by his sister that Sinhalese men in a van had come to his family home and asked about his whereabouts. The Authority noted that, as it had not accepted that the Uncle was involved in the abduction, there was no explanation for how the appellant could have been identified as a witness let alone have his identity tracked to his family home. The Authority also noted that the appellant’s conduct in the aftermath of the abduction led it to conclude that his claims about the Sinhalese men visiting his home and the ongoing risks to him and his sister were not credible.

12    At [20]-[21] of its decision record the Authority concluded as follows in relation to the appellant’s claim about his attempted kidnapping and the ongoing visits and interest of the Sinhalese men in him:

20.    Looking to the totality of circumstances, I accept that the applicant was witness to an abduction of his former employer’s son (P) in 2012, and that P may have been targeted for his family’s wealth or for other reasons. I also accept that during that incident, he was targeted and shot at, but he escaped. For the reasons given above, I do not accept that P’s uncle was involved in the abduction. I do not accept that the applicant would have been identified and had his family home traced to Batticaloa. I do not accept that the perpetrators had any motive or ability to arrange for a group of Sinhalese men to visit his family home in Batticaloa and ask questions about his whereabouts the day after the abduction. Nor do I accept that in the last 3 or 4 years, Sinhalese men in a van have continued to go to his family home in Batticaloa and question the neighbours and/or his sister and harass them about his whereabouts. I do not accept that the applicant or his sister are at any risk from P’s uncle, the abductors, the Sinhalese men, the authorities or anyone else associated with the abduction in 2012. I find that the applicant was an unwitting witness to a criminal act, and other than in the immediate moments after the abduction occurred, no person or group has any interest in finding or harming the applicant. I find there is no real chance of the applicant being seriously harmed by any person as a result of the 2012 abduction, or any events that followed. As I have found there is no real chance, it follows that the question of state protection or witness protection does not arise.

21.    I accept that criminal activities occur in Sri Lanka, including abductions and extortion/ransom attempts and that the motive is usually political or business-related. The applicant is not an obviously wealthy person (he was an apprentice goldsmith) and he has no political or other profile that the country information would indicate may elevate his potential to be adducted or extorted. While I accept criminal acts occur in Sri Lanka, on the basis of his low profile and having regard to the country information before me, I find that the prospect of the applicant falling victim to abduction or ransom or other criminal act is remote. Accordingly, I find there is no real chance of him suffering serious harm on this basis.

13    The Authority then went on to consider an additional claim made by the appellant during his protection visa interview that he was captured by the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna Group) in 2008 while living in Batticaloa and was detained and questioned for a day as he was suspected of having links to the Liberation Tigers of Tamil Eelam (LTTE). On the evidence before it the Authority was satisfied that the appellant was detained and questioned once for a relatively brief time and that he came under no further scrutiny from the Sri Lankan Army (SLA) or the TMVP. That conclusion led the Authority to find that the appellant was not considered to be a member of or otherwise connected to the LTTE and to conclude that the appellant would have no such security profile on his return.

14    The Authority also considered whether the appellant would be at risk of harm on return to Sri Lanka from any other security force or government authority, including the SLA. The Authority found that the appellant has no actual profile, political opinion or connection to the LTTE and that he would not be subject to mistreatment for that reason.

15    Finally, the Authority considered whether the appellant would face harm on his return to Sri Lanka because of his illegal departure but concluded that he would not. The Authority was satisfied that any process or penalty the appellant might face on return to Sri Lanka because of his illegal departure or as a failed asylum seeker would not constitute persecution for the purposes of the Act.

Proceeding in the Federal Circuit Court

16    The appellant commenced a proceeding for judicial review of the Authority’s decision in the Federal Circuit Court. He raised the following two grounds in his second further amended application filed in that court:

1.    The failure of the second respondent (“Authority”) to consider exercise of its discretion under section 473DC of the Migration Act 1958 (“Act”) to invite the applicant to provide evidence on whether he could be subject to abduction or ransom attempts was legally unreasonable.

2.    Further or in the alternative, the Authority failed to apply section 473DD of the Act to the applicant’s submission, and supporting country information before the Authority, that the Sri Lankan authorities were known to use “white vans” in abductions.

17    The primary judge rejected both grounds.

18    The primary judge noted at [65] of DIN16 that ground 1 concerned the Authority’s findings at [21] of its decision record. At [71] her Honour accepted the Minister’s submissions that the appellant appeared to rely solely on the fact that the Authority did not refer to any consideration by it as to whether it should exercise its powers under s 473DC(3) of the Act to invite the appellant to give new information on his family’s perceived wealth. Her Honour also accepted that the fact that the Authority did not refer to the exercise of those powers did not, by itself, support the inference that it failed to consider the exercise of those powers, referring to s 473EA(1) of the Act which makes clear that the Authority is not required to give reasons as to whether it has made or considered a procedural decision in the course of a review.

19    The primary judge observed at [72] that, in contrast to the position in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16), the Delegate found that there was no information before her to indicate that the appellant was wealthy or would be perceived to be wealthy and therefore a potential target for extortion. The primary judge accepted the Minister’s submission that, if the appellant wished to challenge that finding, he could have done so in the Submission to the Authority but did not. In those circumstances, the primary judge found that it was not legally unreasonable for the Authority to fail to invite the appellant to give new information on the subject of his family’s wealth: at [73]-[74] of DIN16.

20    The primary judge referred to the appellant’s contention that the Delegate found the motivation for the abduction of his former employer’s son to be unclear and only considered whether the appellant would be pursued or harassed as a consequence of that event and that the Authority accepted that the appellant’s former employer’s son had been targeted due to his family’s wealth or for other reasons. At [77] her Honour noted that the appellant submitted that the Authority should have asked itself (at [21] of its decision record) whether the appellant could himself be subject to abduction or extortion attempts.

21    The primary judge accepted at [79] of DIN16 the Minister’s submission that, by the appellant’s own admission to the Authority, the appellant could not take the question of the motive of the perpetrators any further than he did during the SHEV application process. The primary judge said at [80] that in those circumstances the Authority’s finding that the appellant’s former employer’s son may have been targeted because of his family’s wealth or for other reasons was little more than speculation to which the appellant was unable to add. The primary judge observed that, in any event, the Authority accepted the appellant’s claim that he witnessed the abduction and that the abduction may have been because of his former employer’s son’s family’s wealth or for other reasons. The primary judge found that the Authority’s speculation was consistent with the Delegate’s statement that “it is possible, as the [appellant] suggests, that [the former employer] and his son could have been targeted in this crime because [the former employer] was wealthy”.

22    The primary judge concluded at [81] that she was not satisfied that the information relied upon by the appellant in relation to ground 1 was in fact new information such that there was no obligation on the Authority to consider whether to exercise its discretion under s 473DC of the Act in relation to the appellant’s risk of abduction or extortion and the motivation behind his former employer’s son’s kidnapping. The primary judge noted that the Delegate made findings in respect of both of these matters and that the appellant took neither of them further before the Authority. At [82] the primary judge concluded that the Authority’s findings on both matters were open to it on the evidence and material before it, were based on probative evidence, were not without an intelligible justification and were not legally unreasonable.

23    The primary judge then addressed ground 2. Her Honour was not satisfied that the claim in relation to van abductions by the authorities included in the Submission was new information and accordingly found that there was no enlivenment of the Authority’s obligation to consider s 473DD of the Act in relation to that claim: at [95] of DIN16.

24    Although the Minister conceded that the extract from the UN Report included in the Submission was new information, the primary judge was not persuaded that the Authority’s error in considering that report was of any material effect and found that it did not operate unfairly to the appellant. At [98] the primary judge accepted the Minister’s submission that if the Authority had not had regard to the extract from the UN Report there would have been no different outcome.

25    The primary judge pointed out that it was the appellant’s lack of profile that the Authority found to be the reason why he would not be at risk of harm in Sri Lanka from the authorities or any other person, a conclusion that was based largely on the country information before it. Her Honour noted that in relation to the appellant’s claim to fear harm because he witnessed the 2012 abduction, the Authority found the appellant to be an unwitting witness to a criminal act and that following the immediate moments of the abduction, no person or group had any interest in harming him: at [99] of DIN16.

26    In the circumstances, the primary judge concluded that the Authority’s error in failing to apply s 473DD of the Act to the extract from the UN Report was an error within jurisdiction and that, even if it was a jurisdictional error, having regard to the utility in any remitter, the court would not exercise its discretion to grant the appellant relief. Her Honour was satisfied that the result of the review would not have been different if the Authority had turned its mind to s 473DD of the Act in relation to the extract from the UN Report and the Authority’s decision that it was precluded from having regard to that information: at [100]-[101] of DIN16.

The appeal

27    In his notice of appeal filed on 17 May 2019 the appellant raises two grounds of appeal as follows:

1.    Her Honour:

a.    erred in finding that the second respondent had not failed to consider inviting the appellant to give new information regarding personal risk of abduction or ransom attempts, that failing to invite the applicant [to] do so was not legally unreasonable, and that the response to such an invitation would not be “new information” under s 473DC of the Migration Act 1958 (Act); and

b.    ought to have found the second respondent did not consider exercising its discretion to invite the applicant to give new information and that failure to do so was legally unreasonable.

2.    Further or in the alternative, her Honour:

a.    erred in finding that the claim at Court Book page 224, that the Sri Lankan authorities were involved in the abduction attempt witnessed by the appellant, was not “new information” and ought to have found that the second respondent committed jurisdictional error by considering that claim without first forming the state of satisfaction required by paragraphs 473DD(a) and (b) of the Act; or

b.    erred in finding that the failure of the second respondent to apply section 473DD of the Act to the country information at Court Book page 226 was not material and relief of no utility, and ought to have found that the failure was a material breach for which relief should be granted.

Ground 1

28    By this ground the appellant contends that the primary judge erred in rejecting his ground of review that the Authority’s failure to consider exercising its discretionary power in s 473DC(3) of the Act to invite him to give new information on “whether he could be subject to abduction or ransom attempts” was legally unreasonable.

29    The appellant submits that before the Federal Circuit Court it was argued that, on the issue of the 2012 abduction of his former employer’s son, the Delegate had only considered whether the appellant would be pursued or harassed as a consequence of that event, whereas the Authority asked itself (at [21] of its decision record) whether the appellant could himself be subject to abduction or extortion attempts. The appellant observes that the Authority held that the appellant was not “obviously” wealthy and had no profile that would elevate his potential to be abducted or extorted and submits that this was something the appellant could have but never had the opportunity to address at the protection visa interview. The appellant says that before the Federal Circuit Court he argued that these were matters which were never explored at the protection visa interview and that the failure of the Authority to consider inviting him to comment on them was legally unreasonable.

30    The appellant notes that at [71] of DIN16 the primary judge accepted the Minister’s submission that the fact that the Authority did not refer to the exercise of the power in s 473DC(3) of the Act in its reasons did not mean that it was not in fact considered. However, the appellant also notes that his submission was and is that such an inference would not only be drawn on a lack of reference in the Authority’s reasons but also from the fact that the Authority’s reasons specifically dealt with whether there was new information before it under the heading “Information before the IAA” and in light of the centrality of the issue to the appellant’s claims. The appellant submits that it is open for this Court, on rehearing, so to find.

31    The appellant submits that the primary judge’s reasoning at [73]-[74] of DIN16 that it was not legally unreasonable for the Authority not to invite the appellant to give new information “on the subject of his family’s wealth” in circumstances where the Delegate had found that there was no information before her that the appellant is or would be perceived to be wealthy and would thus be a target for extortion and where the appellant had failed to challenge that finding in the Submission suffers from the following vices:

(1)    the Delegate’s finding (at [122] of her reasons) was specifically in relation to extortion by the TMVP and was not a finding in relation to the risk of white van abductions by the Sri Lankan authorities as claimed by the appellant, or abduction generally. The Delegate’s finding that the appellant would not be perceived to be wealthy or to have a profile of adverse interest to paramilitary groups said nothing about whether the appellant was himself at risk of abduction or extortion by the Sri Lankan authorities or other actors for those or “other reasons”;

(2)    the Delegate’s observation that there was “no information” before her in relation to whether the appellant was or would be perceived to be wealthy only enforces the fact that, unless the Authority exercised its discretion under s 473DC(3) of the Act to invite new information on that issue, the Authority would also have “no information” on the issue. The appellant contends that, in those circumstances, failure to invite, or failure to consider inviting, the appellant to give new information would be legally unreasonable;

(3)    by accepting the Minister’s submission that the appellant could have but chose not to challenge the Delegate’s finding (at [112] of her reasons) before the Authority, her Honour was looking at the situation through a “natural justice lens” which is something that a Full Court of this Court and now the High Court of Australia has warned against. The appellant contends that the question in the first instance is not what the referred applicant might theoretically have been able to do, but what the Authority did not do. He says that there is no analogy with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 because a review under Pt 7AA of the Act is prima facie to be conducted on the papers. In that regard the appellant was told that any new information would only be considered in “very limited circumstances” and he would need to explain why the information was not previously known or could not have been given to the Minister’s department; and

(4)    the proposition that it cannot be legally unreasonable to invite a referred applicant to comment on matters that were the subject of findings made by the Delegate is irreconcilable with the decision in DPI17 v Minister for Home Affairs (2019) 366 ALR 665; [2019] FCAFC 43 (DPI17). Further, the primary judge held (at [80]-[81] of DIN16) that there was no obligation to consider inviting the appellant to give new information about the risk of abduction or extortion because the Delegate had made findings on that issue and therefore the appellant’s response to any invitation would not be “new information”. The appellant contends that this was not a submission made by the Minister and that the primary judge erred in conflating “new information” with the broader matters or issues to which the new information might relate. The appellant also contends that the primary judge conflated the circumstances that can give rise to a requirement to consider inviting a referred applicant to give new information, on the one hand, with the response the referred applicant might make to the invitation, on the other. The appellant submits that such reasoning is incompatible with the conclusion in DPI17 that the Authority unreasonably failed to consider inviting a referred applicant to give new information on matters that were the subject of findings by the delegate.

Consideration

32    The appellant contends that the Authority went further than the Delegate in considering the issues arising from the appellant’s claims. The appellant says that the Authority found (at [20] of its decision record) that the appellant would not be subject to harm as a consequence of the abduction that he witnessed in 2012 but it then went on to consider (at [21] of its decision record) whether the appellant faced a risk of being abducted or could be the subject of an extortion attempt himself. It is the latter issue which the appellant contends went beyond the matters considered by the Delegate and which was not explored at the protection visa interview.

33    The first issue that arises is whether the Authority failed to consider inviting the appellant to give new information pursuant to s 473DC(3) of the Act about the issue it addressed at [21] of its decision record (see [12] above).

34    Section 473DC of the Act confers a discretionary power on the Authority to obtain information known as “new information”. It provides:

(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.

(Original emphasis.)

35    For completeness it is also relevant to note that s 473DD of the Act provides that, for the purposes of making a decision, in relation to a fast track reviewable decision the Authority must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information and 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 that information was not and could not have been provided to the Minister before the Minister made the decision under s 65 of the Act or 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.

36    It was not in dispute that the appellant bears the onus of demonstrating that the Authority’s decision is affected by jurisdictional error: see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24]. At issue in this case is the exercise of a discretionary power and whether the Authority considered exercising that power. Relevantly, in BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 (BVD17 Appeal) at [41] a Full Court of this Court (Flick, Markovic and Banks-Smith JJ), in the context of exercise of the discretionary power in s 473GB of the Act, said:

The appellant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] per Gummow J. It follows that he bears the onus of establishing the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s 473GB(3)(b). The Minister does not need to establish that the Authority had indeed considered the exercise of the discretion.

37    As the Minister submits there is no reason why the same reasoning would not apply to this case in the context of considering the exercise of the discretionary power in s 473DC(3) of the Act. Adopting that reasoning, it follows that the appellant bears the onus of establishing the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s 473DC(3) of the Act to invite him to give new information. If the appellant establishes that factual foundation, it then falls to him to establish that the failure to exercise that power was unreasonable.

38    There are two bases on which the appellant says that it can be established that the Authority did not consider the exercise of the discretion in s 473DC(3) of the Act: first, because there is no reference to the exercise of the discretion by the Authority in its decision record; and secondly, because the Authority omitted any reference to the exercise of its discretionary power under s 473DC(3) of the Act in relation to the issue of whether the appellant could be the subject of abduction or extortion attempts in that part of its decision record headed “Information before the IAA”.

39    Section 473EA(1) of the Act provides that where the Authority makes a decision on a review it must make a written statement which sets out the Authority’s decision and its reasons for the decision and which records the day and time on which that statement is made. As the appellant points out the Authority did not in its decision record, prepared in accordance with s 473EA(1) of the Act, refer to the exercise of the discretion in s 473DC(3) of the Act. But as the primary judge found, that of itself is not a sufficient basis on which an inference could be drawn that there was a failure on the part of the Authority to consider the exercise of the discretion. In BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 at [16] the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) relevantly said in relation to the requirement to give reasons in s 473EA of the Act that:

… the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).

See too BVD17 Appeal at [42], [49]; Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461 at [49] (McKerracher, Gleeson and Burley JJ).

40    Relevantly in BVD17 Appeal at [49]-[50] the Full Court said:

49    In our view, consistent with that expressed in BCQ16, the terms of s 473EA do not compel a different approach to that which applies with respect to s 430. The absence of reference to the exercise of discretion in the reasons does not of itself give rise to an inference that its exercise was not considered.

50    As noted in BCQ16 (at [50]), there may well be circumstances where the lack of any information in the reasons as to the exercise of the discretion supports an inference that the exercise was not considered.

41    The primary judge was not satisfied that the mere omission of a reference to the exercise of the discretionary power in s 473DC(3) of the Act was sufficient for her to find that the Authority had failed to consider the exercise of that discretion. There is no error in her Honour’s conclusion. Clearly, based on the authorities referred to above, the Authority is not required to give reasons for the exercise or otherwise of a discretionary power such as that conferred by s 473DC of the Act and the absence of reference to the exercise of discretion in the Authority’s reasons does not of itself give rise to an inference that its exercise was not considered.

42    The appellant says that his claim before the primary judge was not just based on the lack of reference to the exercise of the discretion in the Authority’s decision record but also on the fact that the Authority’s decision record specifically dealt with the issue of “new information” before it under the heading “Information before the IAA” and in light of the centrality of the issue to the appellant’s claims. The primary judge did not address this aspect of the appellant’s submissions in her reasons which the Minister accepts was raised before her Honour in oral submissions.

43    The appellant relies on BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 (BYA17) at [46]-[55] in support of this contention. In that case one of the issues before the Full Court was whether there had been a failure to consider whether certain news reports met the criteria in s 473DD of the Act. At [46]-[55] the Full Court (Rares, Perry and Charlesworth JJ) addressed whether, on the balance of probabilities, the appellants had established that the Authority had failed to consider whether the news articles and submissions relating to them met the criteria in s 473DD of the Act. Their Honours found, based on the circumstances of that case, that an inference could be drawn that the Authority did not consider the news reports either in the exercise of its functions under s 473DD of the Act or in arriving at its substantive decision: at [55]. The circumstances in BYA17 included that the Authority had considered some but not all of the information provided by the appellants’ advisor to it against the requirements of s 473DD of the Act. The Full Court found at [55] that it was the Authority’s “failure to make any reference to the news reports in its reasons, coupled with its detailed consideration of the other new information on which the appellants sought to rely” which entitled it to draw the inference.

44    The circumstances of this case are different. Here the Authority did not refer in its decision record to considering the exercise of its discretion under s 473DC(3) of the Act to invite the appellant to give information about one topic but was then silent on whether it would exercise that discretion to invite the appellant to give information about a second topic. If that had occurred the reasoning in BYA17 may have been apt. Rather in this case there was no reference at all in the Authority’s decision record to considering the exercise of the discretion under s 473DC(3) of the Act.

45    At [3] of its decision record under the heading “Information before the IAA” the Authority did not consider the exercise of the discretion conferred by s 473DC(3) of the Act to invite the provision of new information. Rather, the Authority referred to the Submission and recorded its view that its content and the country information referred to in it was not “new information”, I infer, because it did not meet the requirements of s 473DC(1) of the Act. I accept the Minister’s submission that there the Authority referred to the material on which it based its findings. The Authority there recorded that it had received material from the appellant’s representative. While the Authority is not under a statutory duty to list the material it has received, it is required, by reason of s 473EA(1) of the Act read with s 25D of the Acts Interpretation Act 1901 (Cth), to refer to the evidence or other material on which its findings on material questions of fact are based: see BVD17 Appeal at [47]-[48]. That is what the Authority did at [3] of its decision record.

46    Even if that was not so, the mere listing of the information received by the Authority, which it was under no obligation to do, does not lead me to draw the inference urged by the appellant. That the Authority proceeded as it did and recorded its decision that the Submission and the information referred to therein was not new information does not support the inference which the appellant seeks the Court to draw, namely that the Authority failed to consider the exercise of its discretion under s 473DC(3) of the Act to invite him to give new information.

47    For those reasons there was no error in the primary judge’s conclusion at [71] of DIN16. The appellant has failed to discharge his onus and has not established the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s 473DC(3) of the Act.

48    That is sufficient to dispose of ground 1 of the appeal. However, against the possibility that I am wrong and the Authority did fail to consider the exercise of the discretionary power conferred by s 473DC(3) of the Act I will consider whether the failure to do so was unreasonable as alleged by the appellant.

49    In DPI17 Griffiths and Steward JJ said at [38]-[39]:

[38]    In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:

   (1)    identify the failure with precision;

(2)    examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and

(3)    evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

[39]    Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.

(Original emphasis.)

50    For the reasons that follow there was no error in the primary judge’s finding that the failure to consider the exercise of the power in s 473DC(3) of the Act, if that occurred, was not unreasonable.

51    First, the Delegate’s findings included that:

(1)    the appellant was not of adverse interest to any individuals or groups in relation to the 2012 abduction (at [70]);

(2)    the appellant was not at risk of harm from the authorities or anyone else orchestrating white van abductions (at [97]);

(3)    the appellant did not have “a profile which would cause him to face a real chance of being persecuted for one or more reasons listed in paragraph 5J(1)(a) of the Act by the TMVP or any other paramilitary group or the authorities on return to Sri Lanka” (at [113]);

(4)    there was no evidence before her to indicate that the appellant would be more vulnerable to abductions than other Sri Lankans and in any event the Sri Lankan government would be willing and able to provide effective protection to the appellant (at [137]); and

(5)    the appellant did not face a real risk of significant harm on return to Sri Lanka in relation to the 2012 abduction and did not face a real risk of abduction on his return to Sri Lanka (at [137]).

52    At [112] of her reasons, the Delegate noted that there were reports that the TMVP continues to engage in criminal activity in Sri Lanka, that there was information before her to indicate that paramilitary groups extort from wealthy people no matter what their ethnicity, that there was no information before her to indicate that the appellant is wealthy or would be perceived to be wealthy and thus a potential target for extortion, that the appellant does not have a profile which would make him of potential adverse interest to paramilitary groups and that he had not publicly criticised the Sri Lankan government or engaged in Tamil separatist activities.

53    The appellant submits that he could never have had an opportunity to address the Authority’s finding that he was not obviously wealthy and thus did not have a profile which would lead to his abduction or extortion because it was not raised at the protection visa interview with the Delegate. However, the Delegate squarely raised the issue of his perceived or actual wealth at [112] of her reasons as well as his profile. Notwithstanding that, the appellant did not avail himself of the opportunity to address those matters either by way of submissions to the Authority or the provision of new information. The primary judge addressed this at [72] of her reasons noting that the appellant’s circumstances were distinguishable from those in CRY16. In any event it follows that any alleged failure on the part of the Delegate to discuss these matters, which were nonetheless the subject of findings by the Delegate, at the protection visa interview with the appellant is, in the circumstances, not material so far as the unreasonableness of the Authority’s failure to exercise the power in s 473DC(3) of the Act is concerned.

54    Secondly, as the Minster submits, this was not a case where the Authority advanced a reason for the first time on review to deny the grant of a SHEV to the appellant, in contrast to the position found to be the case in CRY16. Here the Authority affirmed the decision of the Delegate in circumstances where the Delegate addressed a claim but found that the appellant had not persuaded her of the factual substratum to the making of the claim. The Authority did not affirm the decision of the Delegate on an entirely new issue which could only be resolved following receipt of information from the appellant. As I have already observed it was open to the appellant to provide the Authority with submissions if he wished to challenge the Delegate’s finding at [112] of her decision (see [52] above). He did not do so. Having taken that course, as the primary judge found at [72]-[74] of DIN16, it does not follow that the Authority’s failure to consider the exercise of the power in s 473DC(3) of the Act was legally unreasonable.

55    The appellant relies on DPI17. However, the circumstances of that case were different to the present circumstances. First, in DPI17 the Minister conceded that the Authority failed to consider the exercise of the power under s 473DC of the Act in relation to the relevant issue, namely whether or not the sexual assaults which the appellant in that case claimed had occurred had in fact occurred, or in relation to relevant inconsistencies in the appellant’s evidence between the appellant’s protection visa interview and other evidence. In relation to that concession Griffiths and Steward JJ observed at [44]:

This is an important concession, which was properly made. In other cases, an applicant may confront some difficulty in discharging the onus of proof of demonstrating on the balance of probabilities that the IAA did not consider the exercise of the power in relation to the relevant issue. That matter does not arise here, given the Minister’s concession (see eg ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46]-[49]).

56    Secondly, DPI17 turns on its own facts. The delegate in that case made statements to the appellant during his interview that dissuaded him from explaining inconsistencies in his evidence. Notwithstanding that, and despite being aware of what transpired at the interview, the Authority made adverse findings based on those inconsistencies. While it is the case, as the appellant contends, that the delegate in DPI17 did not rely on the inconsistencies in the appellant’s evidence the delegate took active steps to prevent the appellant from resolving those inconsistencies. That did not occur in this case.

57    Finally, the Authority’s conclusion at [21] of its decision record that the appellant did not face a real chance of serious harm by falling victim to abduction, ransom or other criminal acts was also reached on the basis that the appellant has no political or other profile that country information indicated would elevate his potential to be the subject of abduction or extortion. That was also a matter to which the Delegate referred at [112] of her reasons. The appellant could have addressed the Delegate’s finding in that regard in submissions to the Authority but chose not to do so.

58    There is one additional matter to address before leaving this aspect of ground 1 of the appeal. The appellant raises an issue about [80]-[81] of DIN16. The primary judge’s reasoning at that point is, with respect, somewhat confused. The Minister submits that what her Honour had intended to say, in particular at [81], was that the matters in relation to which the appellant argued it was unreasonable for the Authority not to invite him to give evidence on were not new as the Delegate had made findings in relation to them. Be that as it may that is not what the primary judge in fact said. Her Honour appears to say that the appellant could not have given new information if invited to do so pursuant to s 473DC(3) of the Act. In doing so her Honour appears to have conflated the concept of “new information”, namely documents or information, with the matters to which that information might relate.

59    However, that error of itself is not sufficient for the ground to be made out. First, I have already found that the appellant has failed to discharge his onus and have only considered the “unreasonableness” aspect of ground 1 against the possibility that I am wrong in that conclusion. Secondly, as the Minster submits, the other parts of her Honour’s reasons, in which I have found no error, addressing both the question of whether it was established that the Authority failed to exercise the power under s 473DC(3) of the Act and the question of unreasonableness of the alleged failure, were sufficient to deal with ground 1 as framed before the Federal Circuit Court.

Ground 2

60    By this ground the appellant contends that the primary judge erred in rejecting his argument that the Authority’s failure to assess two items of new information against the requirements of s 473DD of the Act was a jurisdictional error.

61    The appellant submits that his representative claimed in the Submission that the Sri Lankan authorities use white van abductions and were “somehow involved in the abduction the applicant witnessed” (which the appellant refers to as the claim regarding the authorities’ involvement). The appellant contends that this was new information because he had never previously claimed that the authorities were involved in the 2012 abduction. The appellant notes that the Authority referred to the claim at [13] of its decision record as “the very late claim to the IAA that the authorities may have been involved in the abduction”. However he says that the Authority did not ask whether there were exceptional circumstances for considering the new information and whether the new information could not have been provided to the delegate or was credible personal information which could have affected consideration of his claims. The appellant submits that the Authority proceeded to consider the claim regarding the authorities’ involvement without forming the state of satisfaction required under s 473DD of the Act and thereby committed jurisdictional error.

62    The appellant observed that the Minister submitted that somehow, because the appellant said the Uncle had contacts with the Sri Lankan authorities, the Authority’s finding that the Uncle was not involved in the abduction necessarily meant the Sri Lankan authorities could also not have been involved in the abduction. He notes that at [95] of DIN16 the primary judge held, on that basis, that the claim regarding the authorities’ involvement was not new information enlivening the Authority’s obligation to consider s 473DD of the Act. The appellant does not accept that the claim regarding the authorities’ involvement was in any way subsumed by the Authority’s other findings and submits that the primary judge conflated “new information” with broader matters or issues to which the new information might relate.

63    There was no dispute that the extract from the UN Report included in the Submission was “new information” and that the Authority had not formed the state of satisfaction required under s 473DD of the Act in relation to it. The appellant submits that the primary judge’s reasoning in relation to the treatment by the Authority of the UN Report is irreconcilable with the decision of a Full Court of this Court in EEM17 v Minister for Immigration and Border Protection (2018) 265 FCR 527 (EEM17) at [45]. He notes that there the Full Court held that the failure of the Authority to apply the conditions set out in s 473DD of the Act to a new claim, which it nonetheless considered and rejected, constituted jurisdictional error.

64    The appellant submits that it is not clear whether the UN Report was considered by the Authority. He says that the UN Report discussed killings and other human rights atrocities committed by the Sri Lankan authorities and the failure of the Sri Lankan justice system to protect victims and witnesses and that it was directly relevant to his claims for protection and there was no independent basis for a decision which would have denied him the possibility of a favourable outcome. The appellant contends that in these circumstances it is enough that it was a realistic possibility that, had the Authority addressed the requirements of s 473DD of the Act, it may have undertaken a different course of fact finding and not necessarily have come to the same view about the merits of his claims. That is, the appellant says that he was denied the possibility of a favourable outcome.

Consideration

65    The appellant contends that there were two pieces of “new information” given to the Authority which it did not assess against s 473DD of the Act: the first was the claim included in the Submission that “[t]he authorities were somehow involved in the abduction the [appellant] witnessed”, i.e. the claim regarding the authorities’ involvement; and the second was the extract from the UN Report included in the Submission. It is convenient to deal with each of these pieces of information in turn.

The claim regarding the authorities’ involvement

66    The first issue that arises is whether this claim was “new information” as defined in s 473DC(1)(a) of the Act. The Minister says it was not new information because it was information that was before the Delegate when she made her decision under s 65 of the Act. The primary judge found at [95] of DIN16 that the claim regarding the authorities’ involvement was not new information.

67    The following matters support that finding.

68    First, in his interview with the Delegate the following exchanges took place in relation to the abduction of the appellant’s former employer’s son:

Interpreter:    Ok, so I didn’t like him and [V] was a very successful businessman, his brother wanted to do some sort of business. The other thing about him is that he had contacts with all people.

  Delegate:    What do you mean?

Interpreter:    Ok, so he knew people from the Sri Lankan Police Force and the CID really well.

  Delegate:    So did they abduct [P]?

  Interpreter:    Yes they did

  Delegate:    What happened to [P]?

Interpreter:    So I actually was too afraid to go back to my workplace and I was scared to go back to my room because l didn’t know what would happen to me because when the van went past me I saw someone pointing at me, and sorry he also said in direct answer to your question, “what happened to [P]” he said “I don’t know”.

  Delegate:    So you haven’t seen him since that day?

Interpreter:    Ok, so when I was running they um pulled out a gun and they shot at me. Sorry can I just clarify that last sentence?

  Delegate:    Yes

Interpreter:    Yes that’s correct, ok. So I was just scared to go back to my workplace because I was wondering whether they would be in that area, whether they would be going around that area.

  Delegate:    Did they try to abduct you?

  Interpreter:    Yes

  Delegate:    How did they try to abduct you?

Interpreter:    Sorry l don’t understand I will have to ask again. So when they were abducting him I noticed his brother and then I just threw the food and I was running so they gave chase in the van and was shooting at me but I went through something like maybe an alley and disappeared.

And:

Delegate:    Who, the uncle?

Interpreter:    Yes, and he knew very well that his brother was wealthy. Ok so I believe he tried to do this so that he could get some money. Ok so um ... ok this is not Tamil or Sinhalese it’s just ah ... I think he means he mixed with Sinhalese people as previously stated, police and CID, but he also mingled with undesirables ... how else can, I am not sure how to define.

And:

Interpreter:    So he had a lot of influence with the police in Colombo so if I went and made a report with the police then I would have faced harm.

Delegate:    How do you know that [P’s] uncle had a lot of influence with the police?

Interpreter:    Because I worked there for 4 years so I knew certain things who he was moving with, that kind of information I had. So I am just wanting to answer and I am not sure if this included but um in Colombo if there were young Tamil boys working somewhere the CID would often arrest them on suspicion and on those occasions [V’s] brother would be the one to go and pay them some money and secure the release of that person.

And:

Interpreter:    Ok I didn’t say that I could speak Sinhalese but I said I could understand when I was spoken to in Sinhalese. I was afraid to go to the state authorities because 1 feared that if I reported this matter because this man had so much influence with the police that the police could easily hand me over to him. I was afraid to go to the police because he has a lot of support from the police.

69    Secondly the Delegate referred to the appellant’s evidence given at his protection visa interview, particularly the evidence at [4(1)] above, at [49], [51] and [136] of her reasons as follows:

49.    The applicant stated at interview that he thinks there were about four or five men involved in the abduction of [P]. He stated that he does not know (to this day) what happened to [P] and he never saw him again. The applicant stated that he noticed [P’s] uncle was seated in the van as the men were abducting [P]. He was asked at interview whether the abductors were wearing masks and whether they were armed. He confirmed they were all wearing masks and they were armed (with a gun). He stated that they also tried to abduct him. One of the men pointed a gun at him as he was running away and fired a shot. The applicant was able to escape the scene unharmed but he was too scared to return to his workplace in case they found him there. The applicant was asked how he could be certain one of the men was [P’s] uncle as the abductors were all masked and it was dark and he claims he was running from the scene. He responded that the man’s gestures and mannerisms reminded him of the uncle. It was put to the applicant that it was hard to accept he could be certain that [P’s] uncle was involved in the abduction as it was night-time, the men were all masked and he claims he was running in fear. The applicant responded that he knew all about the uncle’s activities and with whom he associated (he claimed he had a lot of contacts including within the police and CID). The applicant stated he did not return to work because he feared the men would find him there so he fled to Negombo.

…

51.    The applicant was asked what he believed the motivation was for the abduction of [P]. He responded that the uncle wanted to establish himself in business but had no money for this and he knew [V] was wealthy. He thinks the uncle did this to ‘get some money’. He mixed with Sinhalese people (including within the police and CID) and also with ‘undesirable’ people. The applicant was asked at interview whether there was any ransom demand following [P’s] abduction and he responded he does not know. The applicant reiterated that after the abduction incident he does not know what happened to [P] or what transpired following the abduction.

…

136.    In relation to the applicant’s fear of harm arising from the abduction of [P], whilst I accept that [P] was abducted in 2012 and the applicant was walking with him on the street at the time of the incident, there is no evidence presently before me to indicate that the applicant was the intended target of the abduction. Nor, as discussed at Part 2: Findings of Fact above, on the evidence presently before me, am I satisfied that the applicant is of ongoing adverse interest to the abductors or to anyone else in relation to this incident. I am aware that abductions occur in Sri Lanka (as they do in Australia) and this crime may occur for a variety of reasons. The applicant has provided some reasons as to why [P] may have been abducted. For example, he states that [P’s] father was a well-known wealthy businessman in Colombo and the applicant has implied that the crime could be related to extortion. The applicant also believes that [P’s] uncle had a dispute with [P’s] father and that the uncle was connected to unsavoury characters including corrupt officials within the Sri Lankan authorities. However, I consider the applicant’s reasons for the motivation for the abduction to be speculative. In the applicant’s particular case, I consider that he has provided vague and unsubstantiated information in relation to the perpetrators of the crime (he claims the abductors were masked and it was dark) and the motivation for the crime (the applicant is making unsubstantiated assumptions and has no information as to what transpired following the abduction). The applicant states that he departed Sri Lanka shortly after the incident and he has not been in contact with anyone in Sri Lanka to obtain information about what happened to [P] and his father following the abduction and whether anyone was apprehended and arrested for the crime. In light of the applicant’s unsubstantiated claims, I cannot be satisfied that he was or continues to be of adverse interest to the abductors or anyone else in Sri Lanka in relation to [P’s] abduction.

(Original emphasis.)

70    The Delegate also referred at [97] of her reasons to country information about white van abductions saying that:

As discussed in Part 2: Findings of Fact, whilst I accept that the applicant’s employer’s son [P] was abducted in 2012 and the applicant who was with him at the time of the incident was able to escape the scene of the crime, I am not satisfied that the applicant was and continues to be of adverse interest to the persons involved in [P’s] abduction. In relation to ‘white van’ abductions, a 2015 US Department of State Overseas Security Advisory Council (OSAC) crime and safety report on Sri Lanka notes that kidnappings in Sri Lanka ‘occur infrequently and mainly within the local community’. The motive was ‘usually political or business-related rather than an organized kidnap and ransom enterprise. Victims and victims’ families have also blamed kidnappings on security services (extrajudicial detentions or arrests, known as “white van” kidnappings)’. Whilst I acknowledge that ‘white van’ abductions do take place in Sri Lanka, I do not consider that a person with the applicant’s particular profile faces a real chance of persecution by the authorities or anyone else in Sri Lanka. Further, as discussed above, reports indicate that the situation for Tamils in Sri Lanka under the Sirisena government has improved considerably and the evidence does not indicate that Tamils are being singled out and persecuted. I have also given consideration to country of origin information that indicates the applicant would not be denied effective state protection should he be a victim of a criminal act (this is further discussed below).

(Original emphasis.)

71    Based on the above, it is apparent that the issue of white van abductions and the involvement of authorities in such abductions was the subject of evidence given by the appellant to the Delegate and referred to by the Delegate in her reasons. The primary judge found that was the case. On one view, in effect, the claim regarding the authorities’ involvement was based on or referred to “an established pool of factual information” that was before the Delegate: see Minister for Immigration v CLV16 (2018) 260 FCR 482. It follows that there was no error in the primary judge’s finding that the claim regarding the authorities’ involvement was not new information.

72    The appellant relies on the fact that the Authority at [13] of its decision record refers to the claim regarding the authorities’ involvement as a “very late claim made to the [Authority]”. However, that statement by the Authority is not conclusive of the status of the claim regarding the authorities’ involvement in the matter. Whether that claim is new information must be determined having regard to the requirements of s 473DC(1) of the Act and not by reference to the Authority’s characterisation.

73    Even if the primary judge was wrong in her finding that the claim regarding the authorities’ involvement was not new information, there was no error in her Honour’s finding that the Authority’s failure to assess the information against the requirements of s 473DD of the Act did not constitute a jurisdictional error. The primary judge found at [92] of DIN16 that the Authority rejected the appellant’s claim that the Uncle was involved in the abduction in circumstances where it was the Uncle who had connections to the Sri Lankan authorities. That is, acceptance of the claim regarding the authorities’ involvement was dependent on acceptance of the appellant’s earlier claim that the Uncle was present during the abduction incident. If that earlier claim was rejected by the Authority, as it was at [13] and [20] of the Authority’s decision record, the claim regarding the authorities’ involvement could not be maintained.

74    That that is so seems to be reflected in the Authority’s reasoning at [13] of its decision record. There it rejected the appellant’s claim that he identified the Uncle as one of the men in the van at the time of the abduction or that the Uncle was involved in the abduction and the appellant’s evidence going to that issue. The Authority then opined that “[f]or the same reasons”, i.e. because it did not accept that the Uncle was involved in the abduction, it did not accept the appellant’s claim regarding the authorities’ involvement in the abduction.

75    The appellant relies on EEM17. In that case, after the delegate made his decision, the appellant’s migration agents provided a submission to the delegate which contained a new claim based on the appellant’s involvement with the Australian Tamil Congress, including a photograph of the appellant at a Tamil Heroes’ Day commemoration (referred to as the Post-interview Submission). The Secretary provided the Post-interview Submission to the Authority as part of the material in his control and considered to be relevant to the review. The Authority did not consider whether the Post-interview Submission was “new information” and did not consider whether the conditions in s 473DD of the Act were satisfied in relation to it. Notwithstanding that, the Authority considered the Post-interview Submission and made an adverse credit finding based on the photograph provided. The Authority did not invite the appellant to comment on the adverse finding pursuant to s 473DE of the Act.

76    A Full Court of this Court (Barker, Griffiths and Moshinsky JJ) considered in EEM17 at [4] that at least part of the Post-interview Submission was “new information” for the purposes of Pt 7AA of the Act, that the Authority failed to comply with s 473DD of the Act in relation to that information and that the failure to do so was material. At [45] the Full Court said:

At first blush, the appellant’s reliance on the Authority’s failure to comply with s 473DD may appear to be counter-intuitive, in that the Authority did consider material that the appellant had provided and presumably wanted the Authority to take into account. However, at least in the circumstances of the present case, the failure of the Authority to address the conditions set out in s 473DD operated unfairly to the appellant. The Authority, at [29] of its reasons, set out above, made an adverse credibility finding in respect of the appellant on the basis of the photograph, and this adverse credibility finding formed part of the Authority’s reasons for rejecting the appellant’s claims, as indicated by [32] of its reasons, also set out above. Had the Authority appreciated that it needed to address the conditions set out in s 473DD before it could consider the new information, it may well have approached its fact-finding in relation to this material differently. Its consideration of the new information would have taken place in a context where it had concluded that there were exceptional circumstances to justify the consideration of the material. Further, had the Authority addressed the conditions set out in s 473DD in relation to the new information, it is likely that it would have given the appellant notice under s 473DE of a proposed adverse credibility finding before making an adverse credibility finding in relation to the photograph. As things stand, the Authority formed the view that the photograph of the appellant “purportedly” taken on Tamil Heroes’ Day was “staged in an attempt to strengthen his protection claims” without the appellant having had an opportunity to comment on that proposition. In the circumstances, the failure by the Authority to comply with the requirements of s 473DD was material and the Authority’s decision is affected by jurisdictional error. This is not a case where, for example, there were two separate and independent bases for decision: cf Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [35], [41] and [46].

77    In contrast to the position in EEM17, at [13] of its decision record, in considering the claim regarding the authorities’ involvement, the Authority did not make any finding that was detrimental to the appellant. Indeed, as already observed, the finding in relation to that claim followed from the earlier finding that the Uncle was not involved in the abduction. Further, the Authority’s findings at [14] did not depend on its findings in relation to the claim about the authorities’ involvement but followed from its finding that the Uncle was not involved in the abduction. There the Authority said:

Given these findings, I also have concerns about the plausibility and credibility of the incidents that followed. Specifically, the applicant has claimed that the day after the incident took place, his sister told him that some Sinhalese men in a van had come to his family home and asked about his whereabouts. He claims this has happened on a number of occasions since the incident, most recently four months prior to the interview with the delegate. His sister feels unsafe and now lives elsewhere. As I have not accepted that P’s uncle was involved in the abduction, there is no apparent explanation for how the applicant could have been identified as a witness, let alone have his identity tracked to his family home in Batticaloa. In that context, his claims again appear unsupported on the evidence.

78    It is apparent that had the claim regarding the authorities’ involvement been assessed against the requirements of s 473DD of the Act and not been considered, the outcome would not have been different. Accordingly, any error on the part of the Authority for failing to assess the information against the requirements of s 473DD of the Act was not material: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ).

The UN Report

79    As I have already observed it was not in dispute, either before the primary judge or before me, that the extract from the UN Report set out in the Submission was “new information” for the purposes of s 473DC(1) of the Act. It follows that that information should have been assessed by the Authority against the requirements of s 473DD of the Act before the Authority had regard to it. The issue that arose before the primary judge was whether the Authority’s failure to do so constitutes a jurisdictional error. Whether that is so depends on whether the Authority’s error was material. The appellant said it was while the Minister took the opposite view, a view which the primary judge accepted.

80    In my opinion there was no error in the primary judge’s conclusion that the Authority’s failure to assess the new information against the requirements of s 473DD of the Act was not material and thus did not constitute a jurisdictional error. The UN Report supported the appellant’s claims. In the appellant’s submissions he describes it as discussing “killings and other human rights atrocities committed by the Sri Lankan authorities and the failure of the Sri Lankan justice system to protect victims and witnesses” (see [64] above). According to the Authority, as recorded at [3] of its decision record, it considered the “country information cited” in the Submission. Given that the information supported the appellant’s claims, the consideration by the Authority of it could not have operated unfairly to him. Relevantly, in contrast to the position in EEM17, the information was not used to ground a finding that was adverse to him.

81    The primary judge also considered this aspect of the matter on the basis that the Authority’s failure to assess the new information against the requirements of s 473DD of the Act did amount to a jurisdictional error but held that there would be no utility in a remitter because the result of the review would not be different if the Authority turned its mind to s 473DD of the Act and determined that it could not have regard to the UN Report: at [101] of DIN16. Given the reasoning of the Authority, there was no error in that conclusion.

Conclusion

82    The appellant has failed to make out any of his grounds of appeal. Accordingly the appeal should be dismissed and, as he has been unsuccessful, the appellant should pay the Minister’s costs as agreed or taxed.

83    I will make orders accordingly.

Associate:

Dated:    30 March 2020