Federal Court of Australia

EAT17 v Minister For Home Affairs [2021] FCA 68

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the grounds of appeal be allowed.

2.    The appeal be allowed.

3.    The order of the Federal Circuit Court made on 30 October 2018 be set aside and in lieu thereof it be ordered that:

(a)    A writ of certiorari be issued to the Immigration Assessment Authority quashing its decision made on 9 August 2017 affirming the decision not to grant the appellant a Safe Haven Enterprise visa; and

(b)    The matter be remitted to the Immigration Assessment Authority for determination according to law.

4.    The first respondent pay the costs of the appellant, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The appellant is a Sri Lankan citizen. He arrived in Australia at the Territory of the Cocos (Keeling) Islands as an unauthorised maritime arrival on 26 August 2012. On 23 May 2016, he lodged an application for a Safe Haven Enterprise visa which was refused by a delegate of the first respondent (the Minister) on 8 December 2016. On 14 December 2016, the delegate’s decision was referred to the Immigration Assessment Authority pursuant to s 473CA of the Migration Act 1958 (Cth). On 9 August 2017, the Authority affirmed the delegate’s decision.

2    On 8 September 2017, the appellant lodged an application with the Federal Circuit Court of Australia seeking review of the Authority’s decision. For that application, the appellant was legally represented. A hearing was held in the Federal Circuit Court on 17 August 2018. On 30 October 2018, the primary judge made orders dismissing the application and delivered reasons: EAT17 v Minister for Immigration & Anor [2018] FCCA 3036.

3    On 20 November 2018, the appellant lodged a notice of appeal in this Court appealing from the whole of the judgement. The same solicitor represented the appellant for the purpose of that notice of appeal.

4    The notice of appeal contained a single ground of appeal, being:

The learned Federal Circuit Court Judge erred in law by failing to conclude that the [Authority] erred in law by failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, as to what of conflicting information to accept and which of that information was reliable.

PROPOSED NEW GROUNDS OF APPEAL

5    Subsequently, the appellant obtained new legal representation through Mr D Blades who appeared for him at the hearing of the appeal. He has drawn a proposed amended notice of appeal containing the following substituted grounds:

Substituted Grounds of Appeal

1.    The Federal Circuit Court erred in failing to find that the Authority made a jurisdictional error by acting unreasonably in not considering exercising its statutory powers under Part 7AA of the Act to give the Appellant an effective opportunity to address the issue of relocation that the Authority found dispositive, in circumstances where the delegate had not considered the issue of relocation.

Particulars

(1)    The Delegate found that the Appellant did not have a well-founded fear of persecution on the claims that he had put forward (AB 229-247).

(2)    The Delegate did not consider the issue of relocation anywhere in Sri Lanka.

(3)    The Authority found that the Appellant is within a cohort of people who, according to the report from UNHCR in December 2012, may warrant international protection (at [28]).

(4)    Further, the Authority noted that the Appellant had experienced harm after he commenced living with his aunt in 2009 (harm in the form of continued harassment and extortion demands) and after his uncle’s detention and disappearance (at [31]).

(5)    However, the Authority effectively found that the Appellant could relocate to live with his parents and siblings in Jaffna, which the Authority said was where the Appellant has lived most of his life until 2009 (at [31]).

(6)    The Authority’s finding at [31] (first sentence) that the Appellant’s parents and siblings continue to live in Jaffna was incorrect – the Appellant submitted no evidence that his parents and siblings were living in Jaffna. Instead, his evidence was that they were living in Mullaittivu (AB 29-30), with one brother living in India.

(7)    The Authority acted unreasonably in not considering exercising its statutory powers under Part 7AA of the Act to give the Appellant an effective opportunity to address the issue of relocation.

2.    The Federal Circuit Court erred in failing to find that the Authority made a jurisdictional error by failing to consider, pursuant to its complementary protection assessment under ss 36(2A) and 36(2B) of the Act, whether it would be reasonable for the Appellant to relocate to an area of Sri Lanka where there would not be a real risk that he will suffer significant harm.

Particulars

(1)    The Authority found, for the purposes of its assessment whether the Appellant has a well-founded fear of persecution under s 5J of the Act, that the Appellant is within a cohort of people who, according to the report from UNHCR in December 2012, may warrant international protection (at [28]).

(2)    Further, the Authority noted that the Appellant had experienced harm after he commenced living with his aunt in 2009 (harm in the form of continued harassment and extortion demands) and after his uncle’s detention and disappearance (at [31]).

(3)    The Authority concluded that the CID interest in the Appellant, since his release from detention in 2009, related primarily to attempts at extortion and was localised to the CID area where he lived with his aunt.

(4)    The Authority also concluded, for the purposes of s 5J(1)(c), that there is no evidence before it to indicate that the Appellant is unable to live with his parents and siblings in Jaffna (at [31], last sentence).

(5)    The Authority failed to consider for the purposes of the complementary protection assessment whether it would be reasonable for the Appellant to relocate from his home area where he was living with his aunt (Trincomalee, Eastern Province) to where his parents and siblings were living (Mullaittivu, Northern Province – not Jaffna).

6    The Minister strongly opposes the grant of leave to raise the new grounds of appeal, relying upon a decision of Bromwich J in Han v Minister for Home Affairs [2019] FCA 331, where his Honour said (at [10]-[17]):

10    Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited.

11    In University of Wollongong v Metwally (1985) 60 ALR 68 (also reported as University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481) it was stated by all six justices of the High Court sitting that (60 ALR at 71; 59 ALJR at 483):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

12    The above passage from Metwally was quoted in Coulton v Holcombe (1986) 162 CLR 1 at 8. In Coulton v Holcombe, the following (again, much-cited) observations were made by four justices of the High Court as to the application of the principle to appeals by way of rehearing (at 7):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards…

13    In VUAX, the following pertinent observation was made (at [46]):

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

14    Their Honours in VUAX then quoted a portion of the passage from Coulton v Holcombe reproduced above and said, by particular reference to migration appeals (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit.

15    Plainly enough from the above passage in VUAX, merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. The issue of prejudice was not fleshed out in VUAX, and is of greater moment in cases of this kind for reasons that are developed below, related to the scheme of Part 8 of the Migration Act and the practical reality that cases decided in the appellate jurisdiction of this Court will invariably reflect the final resting place for the issues and arguments ventilated.

16    In addition to taking into account merit, the explanation for a point not being raised below and the question of prejudice, it was observed in Murad (at [20]) that “generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy”, citing Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [94], approved by a five member bench in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].

17    In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 the Full Court observed on the topic of the scope and purpose of Part 8 of the Migration Act and the effective prejudice to the Minister that results where a point is raised for the first time in a migration appeal, at [28]-[29]:

… as Perram J emphasised in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 (AAM15)[at [14]]:

… Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

The approach adopted by his Honour in AAM15 is consistent with the fact that, following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court). As, by analogy, Kirby J, writing extra-judicially, has observed:

The interposition of the Court of Appeal in England produced ‘two tier appeals’, with a further avenue of appeal to the House of Lords, either by leave of the Court of Appeal or by the Law Lords themselves. However, as Sir Raymond Evershed explained in 1951, ‘[t]he Court of Appeal is the final court, in fact, for ninety-five per cent of the civil cases.’ The same was quickly to prove the case after the creation of the Australian permanent courts of appeal.

(Kirby, M, “Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal” (2008) 30(2) Sydney Law Review 177)

(Emphasis in original.)

7    The appellant does not dispute the statement of principle in Han, but contends that the circumstances of this case are materially different, such that the interests of justice require the grant of leave to amend. In support of that contention, counsel for the appellant, Mr Blades, stresses that in this appeal, considerations potentially of life and death arise, whereas the considerations in Han simply concerned whether or not a skilled visa should be granted.

8    It is tolerably clear from the affidavit filed in support of the application to amend and Mr Blades’ submissions that the grounds now raised did not occur to the legal advisers representing the appellant in the Federal Circuit Court and on the drafting of the original ground of appeal. That alone is not usually a sufficient basis to permit amendment, however the most important consideration is the interests of justice. In place of an adequate explanation, Mr Blades accepts that the ground of appeal as it currently stands is misconceived and would enjoy little prospect of success; thus in effect the primary judge was correct on the arguments as advanced before him. I agree. In effect, the unamended ground of appeal seeks to impugn the Authority’s assessment of conflicting country information and the reliability of that information. Such a ground was pressed in four appeals and in each case was rejected by the Full Court which gave its reasons in the lead judgment of BJI17 v Minister for Home Affairs [2020] FCAFC 58.

9    In this context, Mr Blades submits that he is now seeking to crystallise a cogent, and concise ground that clearly emerges from the Authority’s decision. He says that the new grounds are narrowly drawn, and confined to a point of principle drawn entirely from a decision of the Full Court in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. It is said that the decision in CRY16 reflects settled authority on the point in issue, special leave to appeal to the High Court having been refused: Minister for Immigration and Border Protection v CRY16 [2018] HCASL 102. Further, it is said that the Minister will occasion no prejudice if the amendment is allowed.

10    For the Minister, it is contended that allowing the amendment would subvert the evident design of Pt 8 of the Act and the purpose of s 476A in precluding this Court from having original jurisdiction in cases of this nature. Heavy reliance is placed on the decision in Han and the passage quoted above. It is also reiterated that the appellant was legally represented both in the Federal Circuit Court and when the current notice of appeal was filed in this Court and that no adequate explanation has been advanced by the appellant to explain the delay. In these circumstances, the Minister says this is an appropriate case in which to refuse leave to amend without having regard to the merits of the new grounds.

11    As to the Minister’s final point, the same argument was put to Farrell J in FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620, albeit in much stronger terms in that case, that leave should be refused without consideration of the merits of the proposed new grounds (at [16]-[23]). Her Honour rejected that submission, and made a number of pertinent observations (at [26]-[28]) that warrant repeating here:

26    Nevertheless, if a proposed new ground were to reveal a strong case that the Authority fell into jurisdictional error in its approach to its task, it is plainly in the broader interests of the administration of justice that that error be identified so that it will not be repeated by the Authority, as well as in the interests of the individual applicant whose personal freedom and safety may rely on decision-makers making their decisions in accordance with law.

27    Where a strong case of jurisdictional error by an administrative decision-maker is revealed, the fact that the Minister’s avenues of appeal may be more limited – though not eliminated – may be accorded less weight in determining where the interests of the due administration of justice lay.

28    In the Court’s view it is necessary for it to consider the merit of the proposed new grounds so that it may determine the applications for leave to appeal and leave to raise new grounds. The Minister relied on Bromwich J’s statement in Han v Minister for Home Affairs at [15] that merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. In the balance, the converse is also true: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs at [48].

12    Earlier in the reasons (at [15]) her Honour also cited the Full Court’s decision in CGA15 v Minister for Home Affairs [2019] FCAFC 46 (at [36]-[37]):

36    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

37    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

(Emphasis added.)

13    Clearly, a consideration of the merits of the proposed new grounds is not only open to the Court but, in my view, a necessary part of the present inquiry. At the hearing of this appeal, the Minister agreed that the appropriate course was to defer determination of the leave question to be ruled on together with the substantive appeal. As such, I have had the benefit of fulsome argument and submissions on the new grounds. However, the threshold that a ground of appeal must overcome is that it is arguable, meaning it is not fanciful, illogical, or impermissible and rather has a level of rationality and a basis in the material before the Court: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 per Mortimer J (at [6]).

14    By the new grounds, the appellant asserts unreasonableness on the part of the Authority in not considering to exercise its discretion to obtain further information about the prospect of relocation when that issue was not considered by the delegate and the Authority made a factual error in its reasoning on the issue. It is further contended that the Authority failed to consider the reasonableness of relocation in its assessment of complementary protection.

15    The proposed grounds are meritorious in the relevant sense. Without at this juncture expressing any view on their overall prospects of success, the contentions raised rely upon the Full Court’s decision in CRY16 and identify a factual error made by the Authority which, on its face, has been relied on by the Authority to support a finding that Australia does not owe the appellant protection obligations. Further, the Minister accepts that the Authority made the factual error.

16    Counsel for the appellant then took the Court to a number of decisions post-dating Han in which leave to amend had been granted. In BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660, Perry J granted leave to amend noting (at [16]-[18]) the similarities between the proposed and existing grounds in that the same findings were to be challenged and there was no suggestion that some of the particulars had not been raised in the Federal Circuit Court. Her Honour distinguished Han on that basis. Although Mr Blades attempted to demonstrate linkages between the proposed and existing grounds, I do not think that avenue assists the appellant here as it did in BEG17. My attention was also drawn to the decision of Greenwood J in DQA17 v Minister for Home Affairs [2020] FCA 864 in which case the appellant’s existing ground was in very similar terms to the unamended ground in this case and so was bound to fail (at [6]-[10]). His Honour granted leave to amend but did not refer to Han. Similarly, in FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815, White J granted leave to amend without reference to Han, referring instead to CGA15 and the fact that the proposed ground raised a point of law on which further evidence could not have been advanced at first instance (at [17]).

17    The final case cited by the appellant was SZUYG v Minister for Immigration and Border Protection [2019] FCA 2040 per Logan J where his Honour said (at [40]):

Relying upon Han v Minister for Home Affairs [2019] FCA 331 (Han), at [8], per Bromwich J and AWV18 v Minister for Home Affairs [2019] FCA 1315 (AWV18 ), at [5], per Derrington J, the Minister submitted that merit alone was an insufficient basis upon which to grant leave to raise an issue for the first time on appeal. I am not at all sure, reading their Honours reasons as a whole, that either Bromwich J in Han or Derrington J in AWV18 said as much. Had they, it would, with respect, have been inconsistent with Coulton v Holcombe (1986) 162 CLR 1 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588. It is trite that this Court exercises appellate, not original, jurisdiction in matters of the present kind. But the ultimate touchstone in relation to the granting of leave to raise an issue for the first time on appeal is whether that is in the interests of justice. Given the possibility for an appellant on return on the basis of a jurisdictionally erroneous decision, to which I referred in SZSFS, I find it impossible to conceive of a circumstance, in the exercise of the judicial power of the Commonwealth in this type of case, where it would ever be in the interests of justice to refuse leave to amend to an appellant to raise a meritorious issue, providing that entailed no prejudice to the Minister. Such prejudice could but rarely if ever lie in the lateness with which a pure point of law was sought to be raised but it most certainly would usually exist if the point sought to be raised required an evidentiary foundation which was not led in the original juridical review proceeding and could have been challenged on the evidence in that proceeding by the Minister.

18    I respectfully share his Honour’s interpretation of the authorities. It is not the case that merit can never, on its own, provide a sufficient basis for a grant of leave to amend. Having regard to the interests of justice clearly calls for a balancing of the right of an appellant to seek proper review of a decision, with the protection of the appellate nature of the Court’s jurisdiction in these cases. However, in circumstances where no cogent prejudice can be identified by the Minister, it is not in the interests of justice to allow jurisdictional error to go unidentified, potentially forming the basis for the detention and removal from Australia of the appellant, particularly when the factual basis of his claims (subject to a relocation issue) had been accepted. The interests of justice are best served by the review of administrative decisions on meritorious grounds such that jurisdictional errors do not go unchecked and future decisions are made according to law.

19    Leave will be granted to rely on the two new grounds.

FACTUAL BACKGROUND

20    The appellant claims that he was born in the Northern Province in Sri Lanka and his family were displaced during the civil war. In January 2009, his uncle was arrested and detained by the Criminal Investigation Department (the CID) under suspicion of being a member of the Liberation Tigers of Tamil Eelam (the LTTE) and is now missing, presumed dead. Later that year, the appellant was released from an Internally Displaced Persons (IDP) camp in Trincomalee and went to live with his aunt who also resides in Trincomalee. A few days later, four men from the CID searched his aunt’s house. The appellant was questioned and taken to the police station where he was beaten over two days. Once released, the appellant was visited every few days by the CID. Approximately one week after he was released, the CID demanded money from the appellant’s aunt. His aunt was not in a position to give them money and they continued to harass her with visits and telephone calls. Shortly after, the appellant was arrested by the CID under suspicion of being an LTTE member. He was detained for approximately 25 days and beaten during that time. The appellant then applied for, and was granted, a visa to India. He lived in India for one year with his brother. Upon returning to Sri Lanka the appellant again lived with his aunt in Trincomalee. The CID would regularly harass and stop the appellant on his way to school and told his aunt that if she didn’t pay them, the appellant would face the same fate as his uncle. About one month after his return, the CID questioned him about his trip to India. Once he completed his schooling, the appellant tried to get a job to meet the CID’s demands but could not earn enough to pay them. The threats continued and the appellant decided to leave Sri Lanka. The appellant claims he continues to fear the CID and fears the harassment and extortion would continue were he to return to Sri Lanka.

THE AUTHORITY’S DECISION

21    As the delegate had done before it, the Authority accepted the substance of the appellant’s claims and his factual account of the harm he had suffered in Sri Lanka. Both the Authority and the delegate considered the appellant to be a credible witness (at [9]). The Authority accepted that that appellant’s uncle was arrested by the CID and remains missing and presumed dead (at [10]). It also accepted that after the disappearance of his uncle, and while living with his aunt in Trincomalee, he was arrested and tortured on two occasions, and was released after two days and 25 days in each instance (at [11]-[12]). Following a period of time living with his brother in India, the appellant returned to Trincomalee where he and his aunt were subjected to further harassment and extortion by the CID (at [13]).

22    Having accepted the veracity of these claims and being satisfied that they constituted serious harm, both the delegate, and the Authority on review, were required to assess the chance of the appellant facing a real chance of serious harm at the time of their decisions and in the reasonably foreseeable future.

23    A preliminary element of the appellant’s case is that although the Authority affirmed the delegate’s decision to refuse the appellant a visa, it did so on a different basis from the delegate. The delegate formed the view that the appellant’s fear of persecution upon return to Sri Lanka was not ‘well-founded’ because improvements in reconciliation and reform by the Sirisena government, as evidenced by country information, meant that the chance of the appellant ‘being imputed with an LTTE connection for reasons of the [appellant’s] Tamil ethnicity is remote’.

24    In contrast, the Authority conducted a somewhat more sophisticated analysis. It considered the appellant’s risk of future harm by the combination of his past experiences of harm with the fact that he is a Tamil and was born and lived in an LTTE controlled area for part of the war, in circumstances where each factor considered alone would not give rise to a real chance of serious harm (at [21]). After considering a number of country information reports (at [22]-[27]), the Authority found as follows (at [28]):

The [appellant] emphasised in his SHEV interview that he fears returning to Sri Lanka because he continues to fear the CID. He stated that when he returned to his aunt’s home from India he was harmed by the CID and fears that if he returns from Australia they will continue to give him trouble. He stated that this will occur because he is Tamil, came from an LTTE controlled area and this was always referred to during his questioning and mistreatment by the CID. I have accepted the [appellant’s] claim that his uncle was arrested by the CID in early 2009 on suspicion of involvement with the LITE and his whereabouts remain unknown. I note that the detention of the [appellant’s] uncle was reported in a news article provided by the [appellant] at the SHEV interview. I am satisfied that the [appellant] has family links with a person who was suspected of involvement with the LITE. I find that this places the [appellant] within a cohort of people who, according to the report from UNHCR in December 2012, may warrant international protection.

(Emphasis added.)

25    Relevantly to the issues now in dispute, the Authority went on to say the following (at [30]-[31]):

30.    I also note that the [appellant] was able to obtain a passport and exit and re-enter Sri Lanka legally when he travelled to India in late 2009 and returned to Sri Lanka in October 2010. He does not claim to have had any difficulty going through security and immigration checks when doing this. He claims that after his return in October 2010 the harassment and threats from the CID continued. However the [appellant] has consistently indicated, including at the SHEV interview that after his return from India the harassment from the CID was characterised by extortion. The CID threatened to harm the [appellant] if his aunt did not give the CID the money they were demanding.

31.    I note that the [appellant’s] parents and siblings continue to live in Jaffna where the [appellant] was born and lived until 2009. The [appellant] does not claim that his parents and siblings have been subjected to harm in the past, other than displacement due to the war, or that they fear harm now or in the future. I note that the [appellant’s] experiences of harm occurred after he commenced living with his aunt in 2009 and after his uncle's detention and disappearance. Given that he obtained his passport, exited and re-entered Sri Lanka in 2010 without any difficulty I am satisfied that he does not have an adverse profile with the Sri Lanka authorities. I am satisfied that the continued harassment and extortion demands the [appellant] experienced when living with his aunt are primarily localised criminal actions by the CID in the area in Trincomalee where he lived with his aunt. I also note that the Sirisena Government was elected on an anti-corruption platform and has taken some positive action in this regard. I have also considered that there is no evidence before me to indicate that the [appellant] is unable to live with his parents and siblings in Jaffna - the area where he has lived most of his life until 2009.

(Emphasis added.)

26    The Authority concluded that the risk of future harassment and extortion by the CID was confined entirely to the area of Trincomalee where his aunt resides, reiterating (at [37]) that:

I am satisfied that the [appellant] does not have the profile of an LTTE member, an anti-government activist or a Tamil separatist. While I accept that his uncle was detained in 2009 and has since disappeared and I accept that the [appellant] was detained in 2009 on two occasions, the longest for twenty-five days, I am satisfied that his release without being charged at a time when it was possible to detain for a very lengthy period of time under the Emergency Regulations and/or the PTA, indicates that he is not perceived by the Sri Lankan authorities as a person who has links with the LTTE or who is anti-government or an advocate for Tamil separatism. As stated previously, after assessing all the evidence I am satisfied that since his release from detention in 2009 the CID interest in the [appellant] relates primarily to attempts at extortion and is localised to the CID in the area where he lived with his aunt.

(Emphasis added.)

It then concluded (at [41]) that for the reasons stated, the appellant would not face a real chance of serious harm and his fears of persecution were not well-founded.

GROUNDS OF APPEAL AND APPELLANT’S SUBMISSIONS

27    Ground 1 of the appeal raises the argument considered by the Full Court in CRY16. The appellant argues that the Authority acted unreasonably in not considering exercising its statutory powers under Pt 7AA of the Act to give the appellant an effective opportunity to address the issue of relocation that the Authority found dispositive, in circumstances where the delegate had not considered or raised the issue of relocation. The appellant focuses on the following statements bookending [31] of the Authority’s decision:

I note that the [appellant’s] parents and siblings continue to live in Jaffna where the [appellant] was born and lived until 2009.

…

I have also considered that there is no evidence before me to indicate that the [appellant] is unable to live with his parents and siblings in Jaffna – the area where he has lived most of his life until 2009.

28    In actual fact, the appellant’s parents and siblings reside in Mullaitivu, a town about 100 kilometres from Jaffna by road. The record of the appellant’s irregular maritime arrival entry interview lists his place of birth as a village in the Mullaitivu District. It also records that he resided at this place of birth in the Mullaitivu District until 2008 after which a series of locations are listed in the Mullaitivu District and the Northern Province (none of them Jaffna) after which he resided with his aunt in Trincomalee save for the time he spent in India with his brother.

29    The appellant did not submit any oral or documentary evidence, nor was there any other evidence, that his family members were currently living in Jaffna or that he had ever lived in Jaffna. The only evidence in relation to Jaffna was that his parents, and most of his siblings were born there. The appellant had consistently stated from his time of arrival in Australia that his personal and most recent address in Sri Lanka was in Trincomalee in the Eastern Province where he had been living with his aunt. This is, by road, at some considerable distance from the Mullaitivu District.

30    The appellant contends by ground 1 that it was unreasonable for the Authority to not consider the exercise of its discretion under s 473DC of the Act to obtain further information from the appellant about the prospects of relocation in circumstances where there was an ‘information deficit’ on the issue of relocation. The Authority’s statement at the end of [31] that ‘there is no evidence before me to indicate that the [appellant] is unable to live with his parents and siblings in Jaffna…’ is not only factually incorrect, it is a product of the fact that the issue of relocation did not arise before the delegate such that the appellant was never given an opportunity to address the issue. Had he been afforded one, he no doubt would have corrected the Authority’s misunderstanding about where his family members reside.

31    The appellant draws on the analogous circumstances in CRY16. In that case, the delegate rejected the respondent’s claims for protection as the delegate found that he was not a credible witness and did not accept his claim that he had been approached by Hezbollah to work for them or that he had ever been directly targeted or threatened by them. As a consequence, the delegate found that the respondent would not face a real chance of persecution or real risk of significant harm upon return to Lebanon. The Authority, on review, found that the respondent may face a real chance of harm from sectarian violence in his place of habitual residence, but also found that this fear of harm did not relate to all areas of Lebanon and that he could relocate to Beirut where he would not face a real chance of persecution for any Refugee Convention reason. As to complementary protection, the Authority found that the respondent faced a real risk of significant harm in his place of habitual residence, but that he could reasonably relocate to Beirut where there would not be a real risk that he would suffer significant harm.

32    The Full Court (Robertson, Murphy and Kerr JJ) dismissed the Minister’s appeal, concluding that it was unreasonable for the Authority not to consider getting documents or information from the respondent when the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Full Court said (at [82]):

Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

(Emphasis added.)

33    Ground 2 of the appeal concerns the Authority’s complementary protection assessment. The appellant contends that the Authority made a jurisdictional error by failing to consider, pursuant to its complementary protection assessment under s 36(2A) and s 36(2B) of the Act, whether it would be reasonable for the appellant to relocate to an area of Sri Lanka where there would not be a real risk that he will suffer significant harm. Unlike the refugee assessment which the Authority is required to undertake pursuant to s 5J of the Act, the complementary protection assessment requires the decision-maker to be satisfied that it would be reasonable for the person to relocate to a different area of the country: s 36(2B)(a). The Authority’s complementary protection assessment runs for six paragraphs (at [43]-[49]) and primarily refers back to findings made in relation to the refugee assessment to support the conclusion that the appellant does not meet the criteria for complementary protection. The appellant submits that at no point do the Authority’s reasons disclose a consideration of relocation by the appellant away from his habitual residence in Trincomalee where it was accepted the appellant faced a real risk of significant harm, albeit confined entirely to the local area. All that is disclosed are the erroneous statements at [31] that the appellant’s family reside in Jaffna and that there is no evidence to suggest that the appellant would be unable to live in Jaffna with them.

THE MINISTER’S SUBMISSIONS

34    The Minister raises a number of related arguments, some of which stand in the alternative in resisting the grounds of appeal. In response to ground 1, the Minister first emphasises that the appellant’s contention is only that the Authority failed to consider the exercise of the discretion under s 473DC, and that such failure was unreasonable. The ground is not that the Authority failed to exercise the discretion in a particular way. The Minister says that positive evidence would be required to demonstrate that it is more likely than not that the Authority failed to consider exercising the discretion. It is contended there is no evidence in this case.

35    Rather, the Minister points to the Authority’s statement (at [3]) as supporting a better inference that the Authority did in fact consider exercising the discretion. At [3] the Authority said:

I have had regard to the material referred by the Secretary under s.473CB of the [Act]. No further information was obtained or received.

36    This situation, the Minister argues, is the same as the circumstances considered by the Full Court (Griffiths, Mortimer and Steward JJ) in ASB17 v Minister for Home Affairs (2019) 268 FCR 271 (at [48]), where the Authority there had stated that ‘No further information was obtained or received’ (emphasis in the original). The Full Court then held (at [49]) that:

The use of the word “obtained” may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC.

37    On this basis, the Minister says that absent any evidence advanced by the appellant, the assertion of error in failing to consider the exercise of a discretion cannot be sustained. Moreover, the Minister argues that even if the Authority did not consider exercising its Pt 7AA powers in relation to the issue of relocation, it was not bound to do so, the non-consideration was not unreasonable and no jurisdictional error arises.

38    In any event, the Minister also relies on the High Court’s decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (at [16] and [40]) for the proposition that the mere failure of the Authority to mention a discretion conferred by Pt 7AA cannot support the drawing of an inference that the exercise of the discretion was not considered. Whether together or in the alternative, the Minister submits that the principles from ASB17 and BVD17 (which post-dates ASB17) are sufficient to resist ground 1 of the appeal.

39    Additionally, the Minister says that the Full Court’s decision in CRY16 is readily distinguishable from the present case by the fact that, on a proper reading of the Authority’s reasons as a whole, the issue of relocation simply did not arise in this case. In CRY16, the delegate rejected the substance of the appellant’s claims on credibility grounds, consequently finding that he would not face a real chance of serious harm or a real risk of significant harm on return to Lebanon. In contrast, the Authority found that the appellant in that case was at risk of sectarian violence at his habitual residence but that the risk did not extend to Beirut. The Authority then proceeded to consider the reasonableness of that relocation, albeit without permitting the appellant an opportunity to address the issue.

40    The Minister says that in this case, it is not so easily discernible that the Authority made its decision on a different basis from the delegate. In other words, it is contended that after accepting the appellant’s historical claims of harm, the Authority reached the same conclusion as the delegate that the appellant’s fear of persecution or significant harm in the future was not well-founded (at [41] and [49]).

41    In addition to the erroneous statements at [31] about Jaffna which the appellant focusses on, the Minister says that the Court must have regard to the following findings (emphasised below) in considering the Authority’s decision as a whole:

29.    I note that the [appellant] was not ever detained for longer than twenty-five days and he has not been charged with any offence. … That this did not occur in the [appellant’s] case indicates that he was not seriously suspected of LTTE involvement or advocating for a separate Tamil state.

30.    I also note that the [appellant] was able to obtain a passport and exit and re-enter Sri Lanka legally when he travelled to India in late 2009 and returned to Sri Lanka in October 2010. He does not claim to have had any difficulty going through security and immigration checks when doing this. He claims that after his return in October 2010 the harassment and threats from the CID continued. However the [appellant] has consistently indicated, including at the SHEV interview that after his return from India the harassment from the CID was characterised by extortion. The CID threatened to harm the [appellant] if his aunt did not give the CID the money they were demanding.

31.    I note that the [appellant’s] parents and siblings continue to live in Jaffna where the [appellant] was born and lived until 2009. The [appellant] does not claim that his parents and siblings have been subjected to harm in the past, other than displacement due to the war, or that they fear harm now or in the future. I note that the [appellant’s] experiences of harm occurred after he commenced living with his aunt in 2009 and after his uncle's detention and disappearance. Given that he obtained his passport, exited and re-entered Sri Lanka in 2010 without any difficulty I am satisfied that he does not have an adverse profile with the Sri Lanka authorities. I am satisfied that the continued harassment and extortion demands the [appellant] experienced when living with his aunt are primarily localised criminal actions by the CID in the area in Trincomalee where he lived with his aunt. I also note that the Sirisena Government was elected on an anti-corruption platform and has taken some positive action in this regard. I have also considered that there is no evidence before me to indicate that the [appellant] is unable to live with his parents and siblings in Jaffna - the area where he has lived most of his life until 2009.

…

37.    I am satisfied that the [appellant] does not have the profile of an LTTE member, an anti-government activist or a Tamil separatist. While I accept that his uncle was detained in 2009 and has since disappeared and I accept that the [appellant] was detained in 2009 on two occasions, the longest for twenty-five days, I am satisfied that his release without being charged at a time when it was possible to detain for a very lengthy period of time under the Emergency Regulations and/or the PTA, indicates that he is not perceived by the Sri Lankan authorities as a person who has links with the LTTE or who is anti-government or an advocate for Tamil separatism. As stated previously, after assessing all the evidence I am satisfied that since his release from detention in 2009 the CID interest in the [appellant] relates primarily to attempts at extortion and is localised to the CID in the area where he lived with his aunt.

…

41    I have considered the [appellant’s] claims individually and cumulatively. For the reasons outlined above I am not satisfied there is a real chance that the applicant will face serious harm now or in the reasonably foreseeable future in Sri Lanka. His fears of persecution are not well-founded.

(Emphasis added.)

42    The key findings from these passages of the decision, the Minister says, are first, that the CID’s interest in the appellant after he returned to Trincomalee from India, was characterised only by ‘extortion’ (at [30]) and ‘continued harassment and extortion demands’ (at [31]) and ‘attempts at extortion’ (at [37]). The Minister says that the Authority made no finding that this harassment and extortion of him and his aunt constituted serious harm within the meaning of s 5J(5) of the Act. Second, the Minister’s ultimate finding (at [41]) was that there is not ‘a real chance that the appellant will face serious harm now or in the reasonably foreseeable future in Sri Lanka’. This is said to be supported by the statement (at [31]) that the appellant ‘does not have an adverse profile with the Sri Lankan authorities’, as well as the fact that the appellant was able to safely exit and re-enter the country when travelling to India, and that although there was clearly some historical harm due to localised corruption, the Sirisena Government was taking positive steps to address that issue. When considered as a whole, the Minister says the Authority’s decision was based on the same finding as the delegate, that despite the historical experiences of harm, the appellant was not at a real risk of serious harm now or in the foreseeable future in Sri Lanka. Anything he might experience should he return to live with his aunt would not constitute serious harm such that the issue of relocation did not properly arise for consideration.

43    In relation to ground 2, the Minister notes that the Authority held (at [45]) that, for the purposes of complementary protection, the appellant does not face a real chance of serious harm in Sri Lanka. Again, the Minister says the issue of relocation did not properly arise.

44    The Minister also seeks to resist the grounds by asserting that any error on the part of the Authority could not have been material to its overall decision. He submits that where materiality is in issue it is an ordinary question of fact upon which the onus of proof is on the visa applicant, and it is a question the Court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 per Bell, Gageler and Keane JJ (at [46]); PQSM v Minister for Home Affairs [2020] FCAFC 125 per Banks-Smith and Jackson JJ (at [151]).

45    Accordingly, even if the Authority was in error in failing to exercise, or consider the exercise of its powers under Pt 7AA of the Act, that was not a jurisdictional error, as any such error was not material. The absence of such error could not, it is contended, realistically have resulted in the Authority making a different decision: SZMTA per Bell, Gageler and Keane JJ (at [38], [44] and [45]).

46    Similarly in relation to ground 2, the Minister contends that even if the Court was to find that the Authority had erred by failing to consider, for the purposes of its complementary protection assessment, whether it would be reasonable for the appellant to relocate to an area of Sri Lanka where there would not be a real risk that he will suffer significant harm, such error was not material, and therefore was not jurisdictional error.

47    The Minister accepts that the Authority’s statements at [31] regarding Jaffna are factually incorrect. However, that factual error as to where the appellant’s family members are now living is also said to be irrelevant to the Authority’s decision. Having regard to the Authority’s reasons and the information before it, in particular the country information in relation to Sri Lanka, the finding that the harassment of the appellant by the CID and extortion demands on his aunt were primarily localised criminal actions by the CID in Trincomalee, that this had occurred five years prior to the Authority’s decision, and the lack of any evidence from the appellant as to what he might have said to the Authority about relocating to live with his parents or elsewhere in Sri Lanka, the Court should conclude that the absence of the asserted error could not realistically have resulted in a different decision by the Authority. The Minister says the Authority’s decision would have been no different whether the appellant’s family now lived in Mullaitivu or Jaffna and that the error could not have been material in the relevant sense.

CONSIDERATION

48    As noted, a preliminary element of the appellant’s case is that the Authority affirmed the delegate’s decision on a different basis, that basis being that the risk of serious harm to the appellant was localised to Trincomalee and there was no reason why he could not relocate to live with his parents. The Minister says the issue of relocation did not arise for consideration. Before turning to deal with each of the grounds, it is necessary to assess whether the Authority’s decision is in fact based on a finding that the appellant could avoid the harm claimed by relocating to another part of Sri Lanka. If the Minister’s submission that the issue did not arise is correct, the essential premise of both grounds falls away.

Did the issue of relocation arise on a proper reading of the Authority’s decision?

49    It will be recalled that the Authority accepted (at [10]) that the appellant moved to live in Trincomalee with his aunt in May 2009. In January 2009, his uncle (the aunt’s husband) was kidnapped by the CID on suspicion of LTTE involvement and remains missing, presumed dead. In the same month as he arrived in Trincomalee, the CID detained and tortured the appellant for two days. A month later he was again detained and tortured for 25 days (at [12]). The appellant then spent approximately 12 months living with his brother in India. A month after returning from India in 2011 to again live in Trincomalee with his aunt, the appellant was questioned by the CID and the CID continued to threaten and harass his aunt, pressuring her to pay them money (at [13]). The appellant then completed his schooling and began electrical work to try and meet the CID’s monetary demands. When this failed, he departed Sri Lanka in August 2012.

50    The Minister, in effect, contends that a distinction can be made in relation to the Authority’s findings on the harm experienced by the appellant prior to his trip to India in contrast to the harm experienced after his return from India. The former period can be characterised by the two instances of detention and torture while the latter, as the Authority noted (at [30]), was characterised by extortion. The Minister says the Authority made no finding that the latter period of extortion amounted to serious harm for the purpose of s 5J of the Act and this supports the Authority’s ultimate conclusion that the appellant did not face a real risk of serious harm ‘in Sri Lanka’ (at [41]).

51    This submission cannot, with respect, be accepted. At [13] the Authority describes the appellant’s trip to India and the extortion he and his aunt experienced on his return. The first sentence of [14] then reads as follows:

As I accept these claims I find that the [appellant] has been subjected to serious harm in the past in Sri Lanka by the Sri Lankan authorities for reasons of his Tamil ethnicity and his imputed association with or support for the LTTE arising from his uncle's suspected involvement with the LTTE and the [appellant] coming from an area under LTTE control during part of the war. …

(Emphasis added.)

52    The Authority’s decision then records (at [28]) that in his visa interview the appellant:

… stated that when he returned to his aunt’s home from India he was harmed by the CID and fears that if he returns from Australia they will continue to give him trouble. He stated that this will occur because he is Tamil, came from an LTTE controlled area and this was always referred to during his questioning and mistreatment by the CID.

(Emphasis and underlining added.)

53    The appellant’s statement of 23 May 2016 that was before both the delegate and the Authority (Appeal Book at 185) records that:

24.    I returned to Sri Lanka after about one year to live with my aunt again and enrolled in school to try and finish my studies (O levels). I had only been back in Sri Lanka for about one month and the CID started coming to my aunt’s house again. This time they questioned me about my India trip and I told them I went to India to study because I didn’t want the CID to know I left Sri Lanka because of them.

25.    The CID continued to harass us and would stop me regularly on my way to school, maybe twice a week, and ask me what I was doing in the area and if I was working for the LTTE. The CID told my aunt that if she didn't pay them money that they were going to kidnap me and I would face the same fate as my uncle.

(Emphasis added.)

54    At no point do the Authority’s reasons disclose any distinction between claims before or after the travel to India or rejection of the appellant’s claims after he returned from India. To the contrary, the Authority accepted all of his claims and held (at [14]) that they amounted to serious harm.

55    The Minister contends that undue focus should not be placed on the Authority’s erroneous statements that the appellant’s family resides in Jaffna (at [31]). While this is no doubt correct, those statements cannot be ignored, nor can they be completely discounted by the rest of the Authority’s reasoning.

56    After noting (incorrectly) that the appellant’s family reside in Jaffna and that the appellant made no claim that those family members had been subject to harm in the past, the Authority found no evidence to indicate that the appellant would be unable to live with his parents. When read together with the statements at [31] and [37] that the harassment and extortion was confined to Trincomalee, the only sensible inference to be drawn is that the Authority considered the appellant could avoid the risk of harm in Trincomalee by returning to a different location where his parents live. Were I to accept the Minister’s submission that the Authority did not in fact consider the appellant to be at a real risk of serious harm in the foreseeable future in Trincomalee, these statements would make no sense. The Authority is not in the business of providing sage advice to an appellant on the best approach for avoiding less than real risks of serious harm.

57    In my view, the Authority reached the conclusion that the appellant did not face a real risk of serious harm because it considered that the appellant could avoid that risk, localised to Trincomalee, by relocating to Jaffna where the Authority erroneously believed his parents reside. This conclusion was necessarily based on relocation and that consideration was dispositive of the Authority’s decision. It is clear then that the foundation for the appeal grounds is established.

Ground 1: failure to consider the discretion to get new information

58    It is first necessary to determine whether the Authority did in fact fail to exercise its discretion under s 473DC of the Act to obtain new information. If such failure did occur, it must then be shown that it was unreasonable in the circumstances of this case.

59    In light of the High Court’s recent decision in BVD17, I am unable to find that that Authority failed to consider the exercise of its discretion in this instance. The majority of the High Court in that decision said the following (at [15]-[16]):

15    … Amongst those other provisions is s 473DC(1), which confers a discretion on the Authority, itself to be exercised within the bounds of reasonableness, to get "new information", being documents or information that were not before the Minister when making the decision under s 65 and that the Authority considers may be relevant. Amongst them also is s 473DC(3), which confers a discretion on the Authority, again to be exercised within the bounds of reasonableness, to invite any person to provide new information in writing or in an interview. Consideration and disclosure by the Authority of such new information as the Authority might get under s 473DC(1) or s 473DC(3) are then governed by ss 473DD and 473DE.

16    Two further provisions of Pt 7AA are also appropriate to be mentioned. Section 473EA, which is located within Div 4, requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both "the decision of the Authority on the review" and "the reasons for the decision". The analysis in Minister for Immigration and Citizenship v SZGUR of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is 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).

(Emphasis added, citations omitted.)

60    While it may appear somewhat incongruous that the Authority is not required to give reasons for the exercise or non-exercise of a discretion, yet is required to exercise that discretion reasonably, in this case the appellant has not been able to point to any evidence that supports an inference that exercise of the discretion was not considered. In FOA18, White J observed (at [46]) that ‘[p]roof that the IAA member did not consider exercising the power in s 473DC(3) is essential for a claim that the omission to do so was unreasonable’ (citing ASB17 at [46]-[49]).

61    It will be recalled that in this case the Authority said the following (at [3]):

I have had regard to the material referred by the Secretary under s.473CB of the [Act]. No further information was obtained or received.

In CRY16 on which the appellant relies, the second sentence above was not stated by the Authority. Although the appellant here contends, perhaps quite correctly, that such statements are part of the ‘pro forma’ template of decisions of the Authority, it is significant that the second sentence above does not appear in the Authority’s decision the subject of CRY16. While it may not always be sufficient for the Authority to simply rely on such an admittedly generic statement to demonstrate consideration of a discretion, the onus remains on the appellant to support a contrary inference with evidence. The Full Court’s decision in CRY16 must now be read in light of the decisions in ASB17 (at [46]-[49]) and BVD17 (at [16] and [40]). In particular the majority of the High Court’s statement at [40] in BVD17 is apposite:

Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. The Authority's specific reference to taking particular country information into account as "new information", thereby indicating an exercise of discretion under s 473DC(1), lends no added support to the drawing of the inference. Having been before the delegate at the time of the decision under review, the information contained in the documents in the departmental file did not meet the description of "new information". The Authority's reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.

(Emphasis added.)

62    Although any consideration that the Authority gave to the possible exercise of its discretion under s 473DC would have proceeded on the Authority’s false impression that it had the information it required because it believed that the appellant’s parents resided in Jaffna, for the reasons given above I am unable to find that the Authority failed to consider the exercise of the discretion. An inquiry into the unreasonableness of any such failure therefore does not arise. Ground 1 cannot succeed.

Ground 2: reasonableness of relocation under complementary protection

63    By s 36(2)(aa) of the Act the decision-maker must consider, in addition to the refugee assessment under s 5J, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being returned, there is a real risk that the person will suffer significant harm. As the Authority correctly observed (at [46]), the complementary protection provisions impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ under s 5J. For this reason, many decisions of the Authority (including this one) rely on findings made in relation to the refugee assessment to support conclusions on complementary protection. As the Authority stated (at [45] and [48]):

45.    I have considered the [appellant’s] claims that he fears being harmed in Sri Lanka because he is a Tamil from an area in the North that was controlled by the LTTE; because he is suspected of being a person with family links to the LTTE; because he was previously detained, questioned and tortured by the CID; and because he would be returning as a Tamil failed asylum seeker who departed Sri Lanka illegally. As outlined in the preceding pages I have found that the [appellant] does not face a real chance of serious harm in Sri Lanka in relation to these claims when considered individually and cumulatively.

…

48.    I find that the [appellant] does not face a real risk of significant harm now and in the reasonably foreseeable future in Sri Lanka.

64    For the reasons set out above, I have found that the Authority’s statement (at [31]) about the appellant’s ability to relocate to Jaffna to live with his parents formed a necessary integer of the Authority’s finding (at [41]) that he did not face a real chance of serious harm. The issue of relocation arose in the Authority’s refugee assessment and, in [45] it proceeded to rely on those findings to support its complementary protection conclusion.

65    Section 36(2B) of the Act provides as follows:

36    Protection visas—criteria provided for by this Act

...

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

(Emphasis added.)

66    As the Full Court (Jagot, Charlesworth and Snaden JJ) recently observed in CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 (at [5]-[6]):

5    It is well established that s 36(2B)(a) involves two questions, first, whether there is a place within the relevant country where there would not be a real risk that the non-citizen will suffer significant harm and, secondly, whether it would be reasonable for the non-citizen to relocate to that place: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212; (2016) 161 ALD 73 (MZACX) at [35], applied in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; (2018) 265 FCR 572 and referred to in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526.

6    In MZACX at [35] Kenny J contemplated that in dealing with the second question, of the reasonableness of relocation:

it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry.

(Emphasis added.)

67    The reasonableness of an applicant’s relocation from the habitual place of residence where he or she is at risk of significant harm to another place within the receiving country expressly falls for consideration under the assessment of complementary protection. As the Full Court noted in CRY16 (at [66]):

We consider it to be significant that what is reasonable, in the sense of “practicable”, in terms of relocation must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24].

68    The Authority’s reasons disclose no assessment of the reasonableness of relocation to any place other than his habitual residence in Trincomalee. At their highest, the reasons could be interpreted as proceeding on the premise that the reasonableness of the appellant’s relocation to Jaffna (where he made no specific claims to fear harm) could be found in the fact that his parents reside there. But that fact was incorrect. Despite clear evidence recorded in the appellant’s record of arrival interview that his parents lived in Mullaitivu and that he had never lived in Jaffna, the Authority found otherwise. This error dispels any possibility of an inference that the Authority properly considered the reasonableness of the appellant’s relocation.

69    The Minster concedes the factual error (at [31]) was made, but submits that it was immaterial in that, given the risk of harm was strictly localised to Trincomalee, it could not matter whether the appellant were to relocate to Jaffna or Mullaitivu where his parents in fact reside.

70    This submission should be rejected. The prospect of relocation away from Trincomalee was central to the Authority’s overall decision to affirm the delegate’s decision. It was therefore required under s 36(2B) to identify a suitable place of relocation and then consider the reasonableness of that relocation. In his regard, the Authority’s finding in the last sentence of [31] that there was ‘no evidence before [it] to indicate that the [appellant] is unable to live with his parents and siblings in Jaffna’ is unsatisfactory. In circumstances where the issue of relocation did not arise before the delegate, an absence of evidence about any inability to relocate to another place cannot support a finding that it is necessarily reasonable to relocate to that place. This conclusion would be the same regardless of whether the Authority had in fact correctly referred to Mullaitivu instead of Jaffna in [31]. More fundamentally, the absence of evidence as to relocation was indicative only of the fact that the appellant had not been afforded the opportunity to address the issue.

71    The Authority failed to consider a relevant consideration required by the Act. As noted in CSZ16 (at [6]-[10]), consideration of the reasonableness of relocation to a particular place can require a consideration of different or lower risks of harm to the appellant than is required to meet the general standard for protection. As Greenwood J noted in DQA17 (at ([106(34)]:

… in the relevant case, subject to the content of the claims of an applicant and the way in which the particular circumstances of the visa applicant are framed and identified, it may be relevant to consider a question of whether the visa applicant is exposed to, or at risk of, a class of harm which may not fall within the description ‘significant harm’, in the proposed place of relocation. That consideration is engaged by the question of what would be ‘reasonable’.

(Emphasis in original.)

72    The appellant claimed to fear harm throughout Sri Lanka on the basis of his Tamil ethnicity and imputed association with the LTTE, as well as on the basis of being a failed asylum seeker with this profile. As discussed, these claims were supported by accepted genuine historical experiences of serious harm at the hands of the CID in Trincomalee. In these circumstances, it is realistically possible (in the sense that it is not improbable or fanciful), that had the Authority considered the reasonableness of relocation to another place, which potentially could have involved consideration of lesser risks of harm, the Authority could have reached a different conclusion.

73    Ground 2 is made out.

CONCLUSION

74    The appeal should be allowed and the matter remitted to the Authority for redetermination according to law. In reaching this conclusion, it is necessary to have due regard to the reasoning of the primary judge who, in considering different grounds and without the benefit of the arguments made before this Court, identified no error. His Honour’s reasons are detailed and comprehensive and, with respect, disposed diligently of the issues and arguments put.

75    Although the appellant has not had comprehensive success, he has established a ground on which the relief he seeks should be granted. In those circumstances, I consider that it is reasonable that the Minister pay the appellant’s costs of the appeal.

Associate:

Dated:    5 February 2021