Federal Court of Australia

BDJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1074

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    The appellant appeals from orders made by the Federal Circuit Court of Australia on 5 June 2020, dismissing the appellant’s application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority: BDJ18 v Minister for Immigration [2020] FCCA 1449 (hereafter “J”).

2    The Authority’s decision affirmed an earlier decision of a delegate of the then Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) Visa (SHEV).

Background

3    The appellant was born in the Mannar District in the North Province of Sri Lanka. He is of Christian faith and Tamil ethnicity. He arrived in Australia as an “irregular maritime arrival” (as defined in the Act) on 3 November 2012.

4    The appellant applied for a SHEV on 7 June 2016. The SHEV application was accompanied by a “Statement” made by the appellant dated 1 June 2016. On 30 June 2017, the appellant was interviewed by the delegate. The SHEV application was refused on 6 July 2017.

5    The appellant’s claims were summarised by the primary judge at J[8]-[13]:

[8]     In his Statement, the Applicant claimed that his father is a farmer who leased land in the Mannar district, and was considered a rich man by the locals. Being a rich man, he was harassed by the Liberation Tigers of Tamil Eelam (LTTE) from the beginning. The Applicant claims that: “It came to the stage where the LTTE was forcing all the Tamils including my father to work for them, and eventually knowing that we had a very big land and a house, took over our house and made it into an LTTE camp.”

[9]     The Applicant claims that his family had to live as tenants in their own house whilst the LTTE cadres occupied it. When the Sri Lankan Army (SLA) gained control of the area, the SLA, along with Karuna cadres, started to attack the Mannar District and the LTTE head office, which was situated at his family’s house. His family fled to a refugee camp. The army captured his house and the LTTE left his village.

[10]     His father tried to return to their house, but he was arrested and beaten for visiting the house. The army set up another camp near the family’s house, and in 2008, the Applicant’s father, mother and younger brother returned to their home. The Applicant stated “my father refused to take me back to our house for fear of losing me to the LTTE or being arrested by the army, as I was young. I was living with a priest [redacted] and continued to attend school.”

[11]     In May 2009, the LTTE was captured, and thereafter, the Applicant started returning home during the school holidays. The Applicant stated that he was arrested in 2010, and his father got the village headman to release him, but the CID and the SLA continued to arrest him periodically. The Applicant claims he was tortured on suspicion of being an LTTE cadre. The Applicant claimed he started to fear for his life due to the continuous arrests.

[12]     The Applicant said that after school he started working in the paddy fields. He hid in fishermen’s huts and went fishing to avoid arrest and torture at the hands of the SLA. In his Statement he claimed as follows:

My father on the other hand, faced the atrocities of the army and the CID. My father always maintained that I had left the area and he had no idea as to my whereabouts. The army beat my father repeatedly and in August 2012, while I was at the patty field working along with my father, the CID officers arrested me and detained me in the army camp. The Tamil paramilitaries who were assisting the army to translate, were threatening to kill me if I failed to tell them the truth that I was an LTTE cadre and was engaged in the war against the army. The army was repeatedly telling me that I was a terrorist and they had witnesses to support their claims and that I would be sent to the special LTTE camp permanently and would not be released in the future. The paramilitaries told me that if the army took me into the LTTE special camps I would eventually be killed and be declared as a missing person. I begged with the Tamil paramilitaries to contact my father who would give them good money if they saved me from being sent to the LTTE prison. I was kept there the whole night and when I was brought back home by the paramilitaries, my father made arrangements to send me out of the country by illegal boat to India. The fisherman told my father that he knew an agent who would send me to Australia by illegal boat. My father did not wish to waste more time as the paramilitaries threatened that if the army officers found that I had been released, they would arrest me and I would be taken to the LTTE prison straightaway. I was so relieved that I got the opportunity to flee from Sri Lanka to Australia. When I arrived in Australia, my father told me that the paramilitaries forced him to pay more money for my release. The CID officers had questioned my father as to my whereabouts and my father told the CID that I had gone missing. Recently, when I spoke to my father, he told me that the paramilitaries and the CID officers were aware that I had left the country by illegal boat, but they were not aware which country I had fled to. They have told my father that if I returned back to Sri Lanka, they would kill me as I was an ex-LTTE cadre who fought the army during the war.

[13]    The Applicant claims he fears for his life if returned back to Sri Lanka because the present government is not taking any steps to stop harassment of Tamils, instead the government is encouraging the army to abduct Tamil youths and LTTE supporters in white vans. The government is determined to wipe out the Tamil youths so that the LTTE will not regroup once again.

The Delegate’s Decision

6    The delegate refused the appellant’s application for a SHEV because the delegate was not satisfied that the appellant met the requirements in s 36(2) of the Act. It is not necessary to set out the delegate’s conclusions and reasoning other than to note that the delegate accepted that the appellant “began residing with a reverend for schooling purposes from 2008 until 2009/2010”.

The Authority’s Decision

7    The Authority affirmed the decision of the delegate not to grant the appellant a SHEV.

8    In its written reasons for decision (hereafter “A”) the Authority accepted that:

(1)    the appellant’s family owned a large landholding and the LTTE took over the family’s property and made it into an LTTE camp, hiding their weapons on the property: A[14];

(2)    the appellant’s family was forced to live as tenants in their own house while the LTTE occupied the house from before 2004 to 2006, and the appellant’s family helped the LTTE by giving food during this time: A[14]-[15];

(3)    the SLA may have been in occupation of the appellant’s family’s house for some period after the LTTE was defeated, and for that reason, the appellant’s father did not return the family to their home until 2008: A[16].

9    The Authority rejected a number of the appellant’s claims. The Authority rejected the appellant’s claim that his father was arrested by the army, kept for two days and beaten. The Authority stated that the appellant “embellished his claim that his father was mistreated”: A[16].

10    The Authority rejected the appellant’s claim that the appellant lived with a priest from 2008 until about 2009/2010, or that he was at risk of being taken by the LTTE or arrested by the army, stating:

[18]     The applicant claims that as his father feared losing the applicant to the LTTE or being arrested by the army because he was young, he arranged for the applicant to stay with a priest, Father J, whilst attending school rather than return to live with the family in their home. The applicant did not claim that the school was far from his family home nor did he provide any information regarding where he lived with the priest whilst attending school. I consider it likely that during the final years of the war there were ongoing difficulties and issues for civilians in going about their daily lives, and that the applicant and his family experienced these difficulties as did other civilians. However, I am not satisfied that the applicant was of any particular interest to authorities at that time such that he would have attracted the attention and mistreatment he has claimed. Whilst the applicant submitted letters of support with his PV application, which generally tended to support his account of having been displaced and having to live with relatives and the refugee camp, there was no similar letter provided by the priest he claimed that he stayed with from 2008 to about 2009/2010 to confirm that that the applicant had actually stayed with him. One of the letters of support purported to be from the school principal of the school that the applicant attended, confirming that the applicant was a student at the NM/Nanattan MV school, Mannar, which I note is in the same area, namely Nanattan, where the applicant’s home is located. I note that the writer states that during the years that he was at the school, the applicant had gone through a lot of hardships because of the bad situation in the area. Two of the other letters of support provided, one from a Member of Parliament dated 8 January 2013, and the other from a person at an organisation titled “The Elimination of Discrimination and Investigation of Human Rights and Fundamental Rights (Sri Lanka)” (EDIHR & FR) dated 21 December 2012, make some reference to the applicant having lived with this priest whilst he was studying at school. However, I note that the writers of these letters do not claim to have firsthand knowledge of the matters stated, one being based on a complaint made by the applicant’s father to the EDIHR & FR in December 2012 and the other being a letter purportedly from a Member of Parliament certifying matters that the applicant has claimed. I also note that the applicant’s school was in the same area, Nanattan, where the applicant’s home is located so if he were of any particular interest to authorities or the LTTE at that time, it would not have been difficult to find him. I therefore do not accept that the applicant lived with the priest as claimed or that he was a risk of being taken by the LTTE or arrested by the army.

11    The Authority did not accept the appellant’s claim that he was arrested by the army in 2010 and released after one day or that he continued to experience periodic arrest, detention, interrogation and torture by the army and CID: A[20]. The Authority did not accept the appellant’s claims of continued arrest and torture by the army and CID officers, as it was “not convinced that the army would have been interested in him as an LTTE cadre or because of any suspicion that he knew where any LTTE weapons were hidden on his property” and that “there is no credible evidence as to why [the appellant] himself would have been singled out”: A[21].

12    The Authority considered the appellant’s claim that he was arrested by CID officers in August 2012, detained in the army camp overnight, interrogated and threatened by Tamil paramilitaries assisting the army: A[22]-[26].

13    The Authority noted multiple inconsistencies in the appellant’s account of this claim between his arrival interview, his Statement, and his Protection Visa interview. The Authority was not satisfied that the appellant’s account of any arrest, detention and torture in August 2012 was credible, stating at A[22] and [26]:

The applicant claims that in August 2012 he was arrested by CID officers and detained in the army camp overnight, during which time he was further interrogated and was told that he would be sent to the special LTTE camp permanently. He claims that he managed to bribe the paramilitary Tamils who took over the interrogation from the CID officers to take him home instead. In addition to my concerns regarding the veracity of how he was released on that occasion, I consider that there are [a] number of inconsistencies in the applicant’s evidence at the PV interview which reflect adversely on his claims of arrest, detention and interrogation by the army and CID officers and specifically in relation to the August 2012 arrest and detention.

…

I do not consider that the applicant has merely omitted details but has in effect changed his story regarding the August 2012 detention incident. Having regard to this and also the inconsistencies referred to above in relation to his evidence as a whole, I do not accept that the applicant was arrested by the army or CID in August 2012 and detained and tortured over 2 days. I am not satisfied that the applicant was a person of interest to authorities at that time.

14    The Authority then turned to an examination of whether the appellant was of a profile which might have attracted attention at the time he departed Sri Lanka or on return: A[27] to [38]. The Authority examined a significant amount of country information and concluded at A[38]:

Having considered the country information, including that relating to changed country conditions detailed above [see A[29] to [37] which refer to significant changes since 2012], I am not satisfied there is a real chance the applicant will suffer harm from the Sri Lankan authorities because of his Tamil ethnicity and/or his origin from an area formerly controlled by the LTTE in the Northern Province, or because the LTTE occupied his family home and his family provided food to the LTTE, or because of his experiences during the war, including being displaced from his family home, disruption in daily life and general harassment experienced by Tamil civilians during the war.

15    The Authority considered the appellant’s position as a returning asylum seeker at A[39]-[50], and concluded that the appellant did not face a real chance of persecution due to his illegal departure if he were to return to Sri Lanka: A[55].

16    The Authority found that the appellant was not a refugee within the meaning of s 5H(1) of the Act and therefore did not meet the requirements of s 36(2)(a) of the Act: A[56].

17    The Authority also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the appellant would suffer significant harm and therefore concluded that the appellant did not meet the requirements in s 36(2)(aa) of the Act: A[61].

Federal Circuit Court

18    The appellant relied on two grounds of review before the Federal Circuit Court, which were in substance the same grounds relied upon in the present appeal. The grounds of review before the Federal Circuit Court were:

1.     The second respondent (Authority) failed to consider, or to give proper, genuine and realistic consideration to, an integer of the applicant’s claim.

Particulars

The applicant claimed to fear harm from paramilitaries in Sri Lanka.

2.     Further or in the alternative, the failure of the Authority to consider exercising its discretion under section 473DC(3) of the Migration Act 1958 to invite, or the exercise of that discretion to not invite, the applicant to give new information was legally unreasonable.

Particulars

The information given to the delegate at the protection visa interview did not address the proximity of the applicant’s school to his family home or the location where he lived with the priest from “2008 to about 2009/2010”.

19    In respect of Ground 1, the primary judge noted that the Authority explicitly referred to the appellant’s claim to fear harm from Tamil paramilitaries when summarising the appellant’s claims. The primary judge held that the Authority’s reasons rejected the factual premise upon which the claimed fear of harm was based, and it was therefore unnecessary for the Authority to make a particular finding in that respect:

[62]     I consider that the Authority’s rejection of the Applicant’s claimed profile of risk at [28], and at the end of [29], encompasses its rejection of the Applicant’s claimed fear of paramilitaries. The Authority’s conclusions about the Applicant not having an LTTE profile and not facing harm from the Sri Lankan authorities at [27] – [29] encompasses and addresses any such claimed fear of harm from paramilitaries (whom the Applicant claimed assisted the army (at [10]), and took over his interrogation from CID officers in August 2012 (at [22])). The Authority’s further consideration in the light of country information at [31] – [33], and its conclusion, having regard to that material at the end of [33] that the Authority was not satisfied that the Applicant “would now be targeted for reason of his race, age or area of origin or that he has a profile such that he would now be of interest to any Sri Lankan authorities”, again encompasses and addresses any such claimed fear of harm from paramilitaries.

[63]     It was unnecessary for the Authority to make a particular finding on the issue claimed of fear of harm from paramilitaries, the factual premise upon which that contention rests having been rejected by the Authority’s findings: see WAEE at [47].

[64]     Ground 1 is not made out.

20    In respect of Ground 2, the primary judge held it was not unreasonable for the Authority not to invite the appellant to give new information in the circumstances and that, in any event, there was nothing to suggest that the claim of the appellant staying with the priest was material:

[74]     The Authority may reach different factual findings than the Delegate: see, e.g., FND17. The findings concerning the priest flow logically from the Authority’s finding that the Applicant was not of adverse interest to the authorities (see above). In these circumstances, I consider it was not unreasonable for the Authority not to invite the Applicant to give new information, nor not to consider exercising its discretion whether or not to do so.

…

[76]     Further, given the Authority’s finding as to the Applicant’s fear of being returned in 2018, there is nothing to suggest that whether or not the Applicant stayed with the priest in 2008 – 2009 was material.

[77]     I find that the Authority did not [act] legally unreasonably. Ground 2 is not made out.

The Appeal

21    As noted above, the appellant’s notice of appeal raised essentially the same arguments as those raised before the Federal Circuit Court. The grounds of appeal were:

1.     Her Honour erred in not finding, and ought to have found, that the Second Respondent committed jurisdictional error by failing to consider the Appellant’s claim to fear harm from paramilitaries in Sri Lanka.

2.     Further or in the alternative, her Honour erred in not finding, and ought to have found, that the Second Respondent’s failure to exercise its discretion under s 473DC(3) of the Migration Act 1958 to provide an opportunity to the Applicant to give new information was legally unreasonable.

Ground 1: Appellant’s claim to fear harm from paramilitaries

22    The appellant relied in particular on three passages in his Statement, which he submitted expressly or impliedly articulated his claim to fear harm from the Tamil paramilitaries independently of his fear of harm from the Sri Lankan army:

(1)    First, the appellant relied on the emphasised text in the extract below from his Statement, which related to the “August 2012 incident” referred to at [12] above:

… in August 2012, while I was at the patty field working along with my father, the CID officers arrested me and detained me in the army camp. The Tamil paramilitaries who were assisting the army to translate, were threatening to kill me if I failed to tell them the truth that I was an LTTE cadre and was engaged in the war against the army. …

(2)    Secondly, the appellant relied on the emphasised text in the extract below from his Statement, which related to the appellant’s release from detention in August 2012, and subsequent threats made by the paramilitaries:

I was kept there the whole night and when I was brought back home by the paramilitaries, my father made arrangements to send me out of the country by illegal boat to India. The fisherman told my father that he knew an agent who would send me to Australia by illegal boat. My father did not wish to waste more time as the paramilitaries threatened that if the army officers found that I had been released, they would arrest me and I would be taken to the LTTE prison straightaway. I was so relieved that I got the opportunity to flee from Sri Lanka to Australia. When I arrived in Australia, my father told me that the paramilitaries forced him to pay more money for my release.

(3)    Thirdly, the appellant claimed that after he left Sri Lanka, the paramilitary made threats against his life. The appellant relied upon the emphasised text in the extract below from his Statement:

Recently, when I spoke to my father, he told me that the paramilitaries and the CID officers were aware that I had left the country by illegal boat, but they were not aware which country I had fled to. They have told my father that if I returned back to Sri Lanka, they would kill me as I was an ex-LTTE cadre who fought the army during the war.

23    The parties agreed that the Authority had an obligation to consider the claims made by the appellant. Speaking in relation to a Part 7 review in the Administrative Appeals Tribunal, the Full Court in WAEE v Minister for Immigration and Multicultural And Indigenous Affairs (2003) 236 FCR 593 at [45] explained:

… If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

24    The Authority’s “review” was undertaken under Part 7AA and was, accordingly, a review of the “fast track decision” made by the delegate. Such a review necessarily involves reviewing the appellant’s claims.

25    The Full Court in WAEE at [47] made the following observations concerning inferences which might be drawn from the reasons given by the Tribunal on a Part 7 review:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

26    Those observations apply equally to reasons of the Authority on a Part 7AA review.

27    The Authority referred to the appellant’s claims regarding the Tamil paramilitaries in its summary of the appellant’s claims at A[10] and at [22] and [24]:

[10]    The applicant’s claims can be summarised as follows:

…

•    In August 2012 CID officers arrested him and detained him in the army camp. He was threatened by Tamil paramilitaries assisting the army that he would be killed if he did not confess that he was an LTTE cadre, and he would be sent to the special LTTE camp permanently and eventually killed.

…

•    Recently his father told him that the paramilitaries and the CID officers were aware that he had left the country by illegal boat, and that if he returned to Sri Lanka they would kill him as he was an ex-LTTE cadre who fought against the army during the war…

[22]    The applicant claims that in August 2012 he was arrested by CID officers and detained in the army camp overnight, during which time he was further interrogated and was told that he would be sent to the special LTTE camp permanently. He claims that he managed to bribe the paramilitary Tamils who took over the interrogation from the CID officers to take him home instead. In addition to my concerns regarding the veracity of how he was released on that occasion, I consider that there are number of inconsistencies in the applicant’s evidence at the PV interview which reflect adversely on his claims of arrest, detention and interrogation by the army and CID officers and specifically in relation to the August 2012 arrest and detention.

…

[24]    Secondly, in his PV interview the applicant stated he was detained and tortured severely for 2 days, his toe nail having been removed and that they used a chemical on him which caused a burning sensation. He claims that after 2 days of torture, they used Tamil interpreters, who were paramilitaries in the Karuna group, to assist the army officers and that after the army officers left, he was told by the Karuna group interrogator that he would be sent to a special LTTE camp where he would eventually be killed and declared as a missing person However , in his written statement the applicant claimed that on this occasion he was detained overnight and then brought back home by the paramilitaries having persuaded them to not to take him to the LTTE prison by bribing them, having agreed that his father would pay money to save him from being sent to the LTTE prison. Although in his written statement he claimed that the torture over 2 days occurred during one of the previous occasions of his claimed periodic arrest by the army, in his PV interview he gave evidence that the torture he described on that occasion occurred when he was arrested in August 2012 and that he was detained for 2 days at that time. Whilst I acknowledge that the sequence and timing of events may be confused over time, in this case I consider that the applicant has in effect changed the circumstances of his claimed arrest and detention in August 2012, being the most recent incident prior to his departure from Sri Lanka, to embellish his claims for protection. On my assessment of the applicant’s evidence, this change is not attributable to any confusion as to the timing and sequence of events over time.

28    The Authority did not expressly refer to the appellant’s claim to fear harm from the Tamil paramilitary when expressing its conclusions.

29    The Authority rejected the underlying factual premise of the appellant’s claim to fear harm from the Tamil paramilitary as set out in paragraphs (1) and (2) of [22] above:

(1)    Threats made by the paramilitaries during the August 2012 incident: The Authority rejected the appellant’s claim concerning the August 2012 incident, finding that it was “not satisfied that the applicant’s account of any arrest, detention and torture in August 2012 is credible”: at A[25]. It did “not accept that the applicant was arrested by the army or CID in August 2012 and detained and tortured over 2 days”: at A[26]. The appellant claimed that the threats from the Tamil paramilitaries occurred whilst he was so detained. It was unnecessary for the Authority to make express findings about the appellant’s claims to fear harm arising from events which it had concluded did not occur. These claims became “logically irrelevant”: see Abebe v the Commonwealth of Australia (1999) 197 CLR 510 at [85] (Gleeson CJ and McHugh J).

(2)    Threats made by the paramilitaries to arrest the appellant if the army officers found out about his release, and extortion of money in order to secure release: The Authority noted that it had “concerns regarding the veracity of how he was released”, before concluding that it did not accept the claims of detention at all: at A[22] to [26]. It was unnecessary for the Authority to make express findings about the claims made by the appellant that the paramilitary made threats based on the army officers “finding out” about his release from detention, or that they extorted money from his father for his release, given that the Authority did not accept that the appellant had been detained (and therefore released) in the first place. These events could not logically have been accepted once the Authority found that the appellant was not detained in August 2012.

30    Threats made by the paramilitary to kill the appellant if he returned to Sri Lanka: The Authority expressly referred at A[10] to the appellant’s claim that “his father told him that the paramilitaries and the CID officers were aware that he had left the country by illegal boat, and that if he returned to Sri Lanka they would kill him as he was an ex-LTTE cadre who fought against the army during the war”.

31    The Authority rejected the appellant’s claim that he would be considered an ex-LTTE cadre on his return to Sri Lanka, stating: “the applicant was not an LTTE member and I am not satisfied that he would now be imputed with any LTTE connection”: at A[37]. The Authority also stated (footnotes omitted):

[28]    … I do not accept that because his family had helped the LTTE in this way and for a period of time when the LTTE was in control of their village during the war, that he has any profile of risk such that he would now be of adverse interest to Sri Lankan authorities.

[29]    … The applicant did not claim that he was an ex-LTTE combatant or cadre and I am not satisfied that because the LTTE had occupied their family property for a period of time during the war and that his family and [sic] had helped the LTTE by giving them food would now lead to any suspicion that he fought as an LTTE combatant or give rise to any imputed LTTE membership. I am not satisfied that the applicant’s profile is such that he faces any risk of being placed in rehabilitation upon his return…

[31]    Recent reporting indicates that only a limited number of persons are of continuing interest to the Sri Lankan authorities. According to the assessment of the UK Home Office, in its opinion, a person being of Tamil ethnicity would not in itself warrant international protection. Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state. The applicant was not a member of the LTTE, nor did he have any significant role in the LTTE. He has not been involved in any post conflict separatist activity. I have not accepted his claims that he was periodically arrested, detained, interrogated and tortured by the authorities between 2010 and August 2012 on suspicion of being an LTTE cadre. I am not satisfied that he would now be targeted by the Sri Lankan authorities on any suspicion of having had a significant role in the LTTE.

…

[38]     Having considered the country information, including that relating to changed country conditions detailed above, I am not satisfied there is a real chance the applicant will suffer harm from the Sri Lankan authorities because of his Tamil ethnicity and/or his origin from an area formerly controlled by the LTTE in the Northern Province, or because the LTTE occupied his family home and his family provided food to the LTTE, or because of his experiences during the war, including being displaced from his family home, disruption in daily life and general harassment experienced by Tamil civilians during the war.

32    As with the claims concerning the events of August 2012, the appellant’s claim was framed in terms which suggested that the LTTE paramilitaries were assisting the Sri Lankan authorities. The claim is expressly framed as involving both the CID and the Tamil paramilitaries. Having regard to the express reference in the Authority’s reasons to the claim, the prominence of the claim in the context of the other claims made and the way the claim was articulated, I am satisfied that the Authority reviewed the claim as part of its review under s 473CC and that it did so in a way which was not shown to be erroneous in a way going to jurisdiction. The emphasis in the appellant’s Statement and his Protection Visa interview was to the LTTE paramilitaries assisting the SLA and CID. That is why the Authority referred only to “Sri Lankan authorities” at A[28], [31] and [38]. The Authority considered the appellant’s claim, but rejected it, including by concluding that the appellant would not be imputed with any LTTE connection: A[37].

33    Ground 1 is not made out.

Ground 2: Failure to invite new information

34    By ground 2 of the notice of appeal, the appellant claimed that the primary judge erred in not finding that the Authority’s failure to exercise its discretion under s 473DC(3) of the Act to invite the appellant to give new information to the Authority was legally unreasonable.

35    In his written submissions, the appellant reframed this ground as being that the Authority either unreasonably failed to consider exercising its discretion under s 473DC(3) or that it unreasonably exercised the discretion not to invite the appellant to provide new information.

36    The question is whether the primary judge should have concluded that the appellant had demonstrated that the Authority’s non-exercise of the power in s 473DC to get new information from the appellant was legally unreasonable. It cannot be inferred merely from an absence of any reference in its reasons for decision that the Authority failed to consider exercising the discretion in s 473DC: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [40]. There is no other basis in the circumstances of this case to warrant such an inference. It follows that the matter cannot be approached on the basis that the Authority failed to consider exercising the discretion to get new information.

Principles

37    Section 473DC is contained within Pt 7AA of the Act, which provides for a “Fast track review process in relation to certain protection visa decisions”. Section 473DC provides:

473DC Getting new information

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

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

   (b)     the Authority considers may be relevant.

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

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

   (a)     in writing; or

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

38    The power of the Authority to invite a person to give new information is conferred on the implied condition that the power must be considered and, where appropriate, exercised within the bounds of reasonableness: ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 at [3]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21], [49], [71] (Gageler, Keane and Nettle JJ), [86] (Gordon J), [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [36] (Griffiths and Steward JJ), [91] (Mortimer J). Compliance with the implied condition of reasonableness in the performance of the duty to review the decision requires the Authority to come to an intelligible decision through an intelligible decision-making process: ABT17 at [20]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] and [105].

39    The question whether a failure to exercise the discretion in s 473DC to “get” new information is unreasonable was examined by the Full Court in BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 15 at [41], where it was said:

… There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [42] (Allsop CJ, Robertson and Mortimer JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310 at [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed).

40    The appellant submitted that, if it is established that the Authority’s failure to exercise its power under s 473DC(3) was unreasonable, it is unnecessary to establish that the Authority’s failure was material to its decision. The appellant relied on Mortimer J’s reasons in DPI17 for this proposition, where her Honour stated at [106]:

However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of “materiality”, before being able to characterise the error as jurisdictional in character.

41    Griffiths and Steward JJ, in contrast to Mortimer J, did consider separately whether the failure to consider the exercise of power under s 473DC was material to the Authority’s decision: DPI17 at [48] to [53].

42    Ordinarily, it is necessary to prove materiality in order to establish that a breach of an express or implied condition of a conferral of statutory decision-making authority resulted in jurisdictional error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [1] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. A breach of a condition of a decision-making power will be material if there is a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred: MZAPC at [2], [39]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. The party who bears the onus of proving jurisdictional error bears the onus of proving that the breach was material: MZAPC at [2], [39].

43    The majority in MZAPC at [33] explained the significance of the qualification “ordinarily” to the principle that materiality must be proved:

The qualification “ordinarily”, and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example: see CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 151 [47], 155 [70], 164 [129]; 375 ALR 47 at 59, 64, 76. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another: Tsvetnenko v United States of America (2019) 269 FCR 225 at 245-246 [96]-[101].

44    In Tsvetnenko v United States of America (2019) 269 FCR 225, the appellant argued that a magistrate’s reasons for denying the appellant’s application for bail were legally unreasonable, in the sense that they lacked any evident or intelligible justification. The Full Court held that it was unnecessary to consider materiality as a separate issue after determining whether the decision was legally unreasonable, because the decision must be found to be unreasonable in a material respect for the conclusion to be reached that it was legally unreasonable: at [94]. Their Honours stated at [96]:

It is not possible to conceive of an instance in which it might be demonstrated that the decision itself is unreasonable, but not in a material way. Rather, in a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.

45    Their Honours considered that the reasoning of Mortimer J, and the joint reasoning of Griffiths and Steward JJ, in DPI17 was consistent with their conclusion:

[99]     In DPI17, Griffiths and Steward JJ first concluded that certain aspects of the reasoning of the administrative decision-maker were legally unreasonable because the failure to consider certain matters was unreasonable or plainly unjust: at [45]. Then, consideration was given by their Honours to whether that error was material and involved jurisdictional error: at [48]. It was found that the error was material because the ultimate decision might have been different if the matters had been considered: at [53]. Expressed in that way their Honours recognised that the conclusion of unreasonableness depends upon demonstrating that there was an effect on the result.

[100]     Mortimer J adopted a different path in reaching a similar conclusion. In the course of doing so her Honour expressed the following view at [106] (having noted that reasonableness is an implied condition on an exercise of statutory power):

However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of “materiality”, before being able to characterise the error as jurisdictional in character.

[101]    For reasons already given the error alleged in this case was not of a kind that could support a conclusion that the decision by the magistrate was legally unreasonable. For that reason the matters raised by Issue 5, even if established, could not demonstrate error by the primary judge. In reaching that conclusion it is not necessary to express any view about whether the primary judge was correct to conclude that the reasoning by the magistrate at para 233 of his reasons (quoted at [81] above) could be described as being without any evident or intelligible justification. The question was not whether para 233 had that character but rather whether the decision of the magistrate to refuse to grant bail had that character. A defect in the reasoning at para 233 could never be sufficiently material to provide the foundation for a conclusion that the decision of the magistrate was unreasonable.

46    This reasoning was referred to with apparent approval by the majority of the High Court in MZAPC at [33], extracted above.

Consideration

47    The appellant submitted that the Authority’s failure to invite the appellant to provide new information about the appellant’s claim to have stayed with a priest was “plainly unjust and lacked any intelligible and evident justification”, and as such was legally unreasonable. The appellant submitted (footnotes omitted):

In the present case, the delegate “accepted as credible” that the appellant had resided with the priest for schooling purposes from 2008 to 2010. At the protection visa interview, the delegate had not asked for further details about where the priest lived or how far it was from his family home, or invite the appellant to elaborate upon the details of his stay with the priest. To the contrary, the delegate proceeded on the basis that it was accepted that he had lived with the priest. However the Authority did not accept that the appellant had resided with the priest. It relied on the absence of any information regarding where the priest lived and whether the school was far from his family home and concluded that, as the school and his family home were in the same suburb, the authorities could have found the appellant if they had wanted to.

48    The Authority took a different approach to the delegate. The Authority concluded that the appellant’s school was in the same area as the appellant’s home. The Authority noted that the appellant claimed that he lived with the priest whilst he attended his school. The Authority inferred that the appellant’s school must have been reasonably accessible from both his family’s home and the priest’s home and that, therefore, the priest’s home was not so far away from his family’s home that it would have been difficult for the LTTE or the army to find the appellant if he had resided at the priest’s home. The Authority’s reasoning was open on the material before it.

49    The mere fact that the Authority might take a different view of the conclusions to be drawn from the material before the delegate does not oblige the Authority to request new information, although the circumstances in any given case may be such that a decision not to get new information might be shown to be unreasonable: BIL18 v Minister for Home Affairs [2020] FCA 1367 at [54]; DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [76]; DPI17 at [41]. The issue about whether the applicant lived with the priest was not a dispositive question, nor one of such central importance that a decision not to get new information about it was unreasonable.

50    The appellant referred to Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. In CRY16, the primary judge had concluded that the Authority acted unreasonably in not considering whether to exercise its discretion to provide the referred applicant an effective opportunity to address a new issue which the Authority found “dispositive”, being the potential for the appellant to relocate within his country of origin. The Full Court held that the failure by the Authority to consider obtaining new information lacked an evident and intelligible justification, in circumstances where the Authority knew that it did not have information on the referred applicant’s particular circumstances and the impact upon him of relocation to Beirut and that the referred applicant was likely to have directly relevant and probative information on the new issue of relocation. The Full Court considered that the Authority’s non-exercise of the discretionary power meant that it “disabled itself” from considering what was reasonable, in the sense of “practicable”, in terms of relocation: at [82]. In other words, the non-exercise of the power was unreasonable because it disabled the Authority from conducting a review of the kind contemplated by Part 7AA.

51    It cannot be said that the non-exercise of the discretionary power in the present case had the consequence that the Authority could not engage in, or fully engage in, the statutory task of review. Nor was it otherwise shown to be unreasonable.

52    Ground 2 is not made out.

Conclusion

53    The appeal must be dismissed with costs.

Associate:

Dated:    7 September 2021