Federal Court of Australia

DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to file an amended notice of appeal is dismissed.

2.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

Introduction

1    The Appellant appeals from the judgment and orders of the Federal Circuit Court (as it was then known) delivered on 9 April 2021. The Federal Circuit Court ordered that the Appellant’s application for judicial review of a decision of the Second Respondent (the ‘Authority’) be dismissed. The Authority affirmed a decision of the First Respondent (the ‘Minister’), by his delegate, not to grant the Appellant a protection visa.

2    The Appellant filed a notice of appeal on 27 April 2021, which he seeks to amend by filing an amended notice of appeal annexed to his written submissions dated 18 January 2022. The Appellant does not press the grounds he argued at first instance, and seeks leave to advance three new grounds on appeal and to file the draft amended notice of appeal.

3    The proposed grounds of the appeal are as follows:

Grounds of Appeal

1.    The Federal Circuit Court at first instance erred in not finding that the Second Respondent (“the Authority”) fell into jurisdictional error in that it erred in interpreting or applying the law.

Particulars

(a)    The Authority erred in interpreting or applying section 473DD of the Migration Act 1958 (“the Act”) in that it failed to consider and to determine if “new information” in statutory declarations submitted to the Authority was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims” within the meaning of section 473DD(b)(ii) of the Act, before determining that there were not “exceptional circumstances to justify considering the new information” within the meaning of section 473DD(a) of the Act. (Appeal Book (“AB”) 273-278, 292-293; Decision (8)-(10))

(b)    The Authority erred in interpreting or applying the term “real chance” in section 5J(1)(b) of the Act or “real risk” in section 36(2)(aa) of the Act, shown by its findings that:

“I find it implausible that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant personally and attended his home three and a half years after the applicant was detained at a LTIE [sic] camp for one week. Further, I find it unbelievable that these men then took the applicant on their motorbike to a cemetery where they beat him, held a gun to his head, accused him of being part of the LTTE, for having brought weapons into the village and told him that they would be coming to collect the weapons and when they returned he had to hand over all of the weapons or he would be killed. I do not accept that this incident took place and I am of the view that the applicant fabricated this aspect of his evidence to enhance his protection claims.” (AB 297, (19))

and

“Based on the evidence before me, I find it highly unlikely that the applicant would have had any profile that would have attracted attention to the applicant in the manner that he describes.” (AB 297, [20])

2.    The Federal Circuit Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it erred in not considering relevant considerations.

Particulars

(a)    The Authority failed to consider matters required by section 473DD of the Act. The Appellant refers to and repeats the matters set out in Particular (a) to Ground 1.

(b)    Further or in the alternative to Particular (a) to this Ground, the Authority failed to consider what it regarded as “new information” in statutory declarations submitted to the Authority when it ought to have found that this information met the requirements of section 473DD(b)(ii) and 473DD(a). (CB 185-186, Decision [5]-[6])

(c)    The Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. This question was squarely raised by the Applicant’s evidence, his submissions, and the findings of the Second Respondent. (AB 130-153, 268-272; AB 297-302, [20], [25], [37], [43])

3.    The Federal Circuit Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it was legally unreasonable.

Particulars

(a)    Further or in the alternative to particular (a) to Ground 1, the Authority was legally unreasonable in not finding that the “new information” in statutory declarations submitted to the Authority met the requirements of section 473DD(b)(ii) and 473DD(a) of the Act. (CB 185-186, Decision [5]-[6])

(b)    Further or in the alternative to particular (b) to Ground 1, the Authority was unreasonable in making. or had no logically probative basis for, the findings set out in that particular. (AB 297, [19]-[20])

4    In summary and in the way addressed by the parties during the hearing the Appellant alleges the Authority’s decision is affected by jurisdictional error because it:

(a)    erred in applying s 473DD of the Migration Act 1958 (Cth) (the ‘Act’) as to the consideration of ‘new information’ presented by the Appellant, or alternatively made findings that failed to consider relevant considerations or were legally unreasonable (proposed grounds 1(a), 2(a), 2(b) and 3(a), which I shall call the ‘New Information Grounds’);

(b)    erred in applying the term ‘real chance’ in s 5J(1)(b) of the Act or ‘real risk’ in s 36(2)(aa) of the Act or, alternatively, made findings on those issues which lacked a logically probative basis or were legally unreasonable (proposed grounds 1(b) and 3(b), which I shall call the ‘Persecution Risk Grounds’); and

(c)    failed to adequately consider whether the Appellant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of Sri Lankan authorities, on return to Sri Lanka (proposed ground 2(c), which I shall call the ‘Harm In Detention Ground’).

5    For the reasons that follow, I have come to the view that the proposed grounds of appeal have no merit, and on this basis refuse leave to file the amended notice of appeal.

Background

6    The background material is not in contention and is primarily taken from the Appellant’s written submissions.

Procedural history

7    The Appellant is a national of Sri Lanka. On 27 August 2012, he arrived in Australia by boat from Sri Lanka in 2012. He applied for a permanent protection visa, but as an ‘unauthorised maritime arrival’ he was later deemed by retrospective amendment of the Act to have been unable to make a valid application for a visa until, on 28 September 2015, the Minister exercised his power under s 46A(2) of the Act to permit this.

8    On 4 February 2016, the Appellant applied for another type of protection visa, being a Safe Haven Enterprise Visa (‘Visa’). On 8 November 2016, he was interviewed by a delegate of the Minister (the ‘delegate’). On 15 November 2016, his then representatives made a written submission to the delegate.

9    On 3 February 2017, the delegate refused to grant the Visa.

10    The delegate’s decision was referred to the Authority for fast track review under Pt 7AA of the Act.

11    On 27 February 2017, the Appellant’s then representatives sent to the Authority a submission and new statements by the Appellant and by a relative.

12    On 19 July 2017, the Authority decided to affirm the delegate’s decision (the ‘Decision’).

13    The Appellant sought judicial review of the decision in the Federal Circuit Court by originating application filed on 11 August 2017. The application was heard on 9 June 2020, and on 9 April 2021 that application was dismissed.

14    The Appellant now appeals to the Federal Court of Australia and seeks leave to rely on new grounds in his draft amended notice of appeal and to file and serve the amended notice of appeal out of time.

Application for protection

15    The Appellant is a Hindu Tamil, born in the Eastern Province of Sri Lanka in 1990, a national of Sri Lanka and no other country, with no right to enter and reside in any other country. He is not married.

16    The Appellant made his claims for protection at his initial biodata interview, entry interview, in his application for the Visa, his interview with the delegate and in his submissions made to the delegate and to the Authority. The primary judge gave a summary of the claims at [3]-[17] of the judgment: DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 678.

17    The Appellant claimed that he had been forcibly recruited by the Liberation Tigers of Tamil Eelam (‘LTTE’) in about July 2007. He had some limited training for a week, before he escaped. He then lived away from his home for three years while he finished his schooling.

18    In about September 2011, after his final examinations, he returned home. He claimed that five or six nights after he returned, six armed men in plain clothes abducted him, took him to a cemetery, accused him of being part of the LTTE and of bringing weapons into the village, beat and kicked him, held a gun to his head, and said they would come to his home to collect the weapons. He claimed that if he did not hand them over, he would be killed. His father found him, took him to hospital, and then to a relative’s house, where he stayed in hiding.

19    Around October 2011 and then December 2011, the Appellant claimed that the same men returned to his parents’ home in search of him and any weapons, and threatened his parents that if he returned he would be killed.

20    In August 2012, the Appellant illegally departed Sri Lanka by boat from an unapproved port with his aunt and uncle’s family, and arrived at the Australian territory of the Cocos (Keeling) Islands.

21    The Appellant claimed that in about March 2013 the same plain-clothed armed men returned to his house to search for him, and that about every six weeks, armed men rode past his family home to check if he was there. The Appellant further claimed that the same plain-clothed armed men attended his family home in August 2015 to search for him.

22    Altogether, the Appellant’s core initial claims involved the abovementioned five incidents of the ‘plain-clothed armed men’ entering his family home.

23    The Appellant claimed that he fears harm from the Sri Lankan authorities if he were to return to Sri Lanka as a young Tamil man from the Eastern Province (a formerly LTTE controlled area), an imputed supporter of the LTTE, an illegal emigrant, and as a failed Tamil asylum seeker.

Submission to the delegate

24    The Appellant’s then representatives sent a detailed written submission to the delegate. The submission addressed the claims of the Appellant and the concerns of the delegate expressed during the delegate’s interview, and made detailed references to various sources of country information about the situation in Sri Lanka, with particular reference to the Sri Lankan government’s continued suspicion and persecution of perceived LTTE supporters, and to abuses of human rights, including torture.

The Delegate’s decision

25    The delegate said:

I note that the applicant has never supported the LTTE and none of his family have ever been members of the LTTE. I find it implausible that one week forcible recruitment into the LTTE in 2007 would cause the applicant to be targeted like he states he was in 2011. The applicant speculated that the armed men may have thought that he was supporting the LTTE for the whole time since he was taken in 2007, as when he escaped he did not go home but went to his Aunt’s house to live.

26    The delegate detailed the “implausibility and contradictions” in the Appellant’s claims and did not accept his core claim that he was abducted, accused of being a supporter of the LTTE, beaten, threatened or searched for, both before and after he left Sri Lanka. The delegate did not accept that the Appellant was of interest to the authorities, nor that he had a real risk of harm as a Tamil or as a returning illegal emigrant and failed asylum seeker. The delegate found that he was not owed protection as a refugee under s 36(2)(a) of the Act, nor complementary protection under s 36(2)(aa).

Additional material before the Authority

27    Following the delegate’s decision, the Appellant’s then representatives sent a further submission to the Authority, with statutory declarations by the Appellant and a relative. The Appellant’s additional statement clarified points of the Appellant’s evidence which the delegate had found problematic, and also contained new information:

(a)    It included the new claim that in December 2016 (after the interview with the delegate but before the delegate’s decision), the same people who had searched for him previously again questioned his family about his whereabouts.

(b)    The Appellant’s statutory declaration also provided further information regarding his uncle and cousin’s affiliations with the LTTE and the Tamil National Alliance (‘TNA’), and annexed an unsigned statutory declaration from his uncle. The uncle’s statement referred to his brother having been killed by the Sri Lanka army in 1990, to problems his family had had with the LTTE, including another brother’s abduction, to the authorities’ association of his family with the LTTE and to his support for a TNA candidate in provincial political elections.

28    The Appellant’s then representatives made the following submissions in relation to the link between the Appellant’s alleged imputed profile as a LTTE supporter and his relatives’ affiliations:

[4]    Further in support of the applicant's claims and attached at annexure 'A' is information in relation to the applicant's imputed profile and reasons for the adverse attention drawn to the applicant in Sri Lanka. Where concerns were raised by the Delegate as to the timing or reasons for the interest in the applicant, we emphasise that the timing coincides with the increased interest in the applicant's relatives who were also of adverse interest to the authorities. This strengthens the credibility of the applicant's claims as to the interest of these groups in the applicant.

…

[8]    As to reasons for reasons [sic] behind the ongoing interest in the applicant, we refer to the relationships set out in annexure ‘A'. This information makes clear the context within which a potential political opinion has been imputed to the applicant, and the reasons for the ongoing interest in the applicant.

The Authority’s decision

29    The Authority said that it considered the material referred to it that was before the delegate, and also did not regard the additional submissions as new information so far as they were responding to the delegate’s decision: Decision [3]-[4].

30    In relation to the Appellant’s and Appellant’s uncle’s statutory declarations, the Authority determined that it would not consider this ‘new information’ for the purposes of assessing the Appellant’s protection claims:

[8]    The applicant has also provided a signed and unsigned statutory declaration. The signed declaration (declaration) is dated 28 February 2017 and differs from the unsigned statutory declaration only by the applicant’s signature. These documents were not before the delegate and are new information. They refer to a number of claims made to the Department that are already before me.

[9]    The declarations raise a number of new pieces of information namely that the applicant’s family were approached in December 2016 regarding his whereabouts and further information about his extended family. The declaration attaches an undated statutory declaration prepared by the applicant’s cousin [sic], U regarding U’s claims for protection. The applicant’s representative claims that to the extent that this constitutes new information, there are exceptional circumstances for taking it into consideration because failure to do so may result in the delegate’s decision being affirmed, notwithstanding that the applicant was at risk of harm on return to Sri Lanka and that Australia owed him protection obligations and that the information was only partly new, having largely been presented to the delegate and the delegate did not ask for these further particulars. The representative states that the information is credible in the sense that it is able to be believed and it is personal in the sense that it was about the applicant’s direct experiences of persecution in Sri Lanka. The representative states that had the new information been known by the delegate it may have affected the consideration of his claims.

[10]    Regarding the applicant’s claim that his family were approached in December 2016, this information predates the delegate’s decision. I note that the applicant was represented at his interview which was held on 8 November 2016, the incident in question happened in December 2016 and the decision was not made until 3 February 2017. The applicant and his representative were made very aware that the onus was on them to provide any information relevant to the applicant’s protection claims at his interview. There is no suggestion by the applicant or his representative that the applicant became aware of this incident after the delegate’s decision. I am not satisfied that this information could not have been provided to the delegate before a decision was made. The information about his family set out in his declaration outlines relatives of the applicant being associated with the Tamil National Alliance (TNA) and the LTTE. I am not swayed by the representative’s submissions as to why the information should be considered. The applicant was given a number of opportunities to discuss his family in Australia at his interview. He was asked whether he had family members involved with the LTTE to which he responded, no. Both the applicant and the applicant’s representative were given the opportunity at his interview to put forward any further claims for protection. The attached statutory declaration of U is undated, unsubstantiated and does not provide any references to the applicant. I am not satisfied that there are exceptional circumstances to justify considering this new information.

31    The Authority gave a summary of the Appellant’s claims for protection. It accepted part of the history which he gave, including that he was a Tamil and forcibly recruited by the LTTE for a week in 2007. However, the Authority was not satisfied that he had been abducted, threatened and beaten in the cemetery, or later sought by the authorities at his home on a number of occasions:

[19]    At his interview, the applicant said that after he had finished his studies in 2011, which was around three and a half years since he was held for one week at the LTTE camp and, after he had returned to his family home, unidentified men came to his house and asked for him. When asked who these people were who took him to the graveyard were [sic], the applicant replied that he could not say for certain and that they could be from the intelligence ring and that he came to this conclusion because of the way that they were talking in a mixed Sinhalese/Tamil language. When asked by the delegate why these men thought he had weapons, the applicant said that when he went to live with his aunt and was not at his own home, these men would have assumed that he was working for the LTTE and they may have thought that he was supporting them and hiding some weapons. I note that the applicant continued to reside in Batticaloa, albeit in different locations, however no men attended his parent’s house in search of him or to determine his whereabouts prior to the claimed incident in 2011. I find it implausible that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant personally and attended his home three and a half years after the applicant was detained at a LTTE camp for one week. Further, I find it unbelievable that these men then took the applicant on their motorbike to a cemetery where they beat him, held a gun to his head, accused him of being part of the LTTE, for having brought weapons into the village and told him that they would be coming to collect the weapons and when they returned he had to hand over all of the weapons or he would be killed. I do not accept that this incident took place and I am of the view that the applicant fabricated this aspect of his evidence to enhance his protection claims.

[20]    Although country information indicates the profile factor, other than ethnicity, that was reported by the vast majority of people to have led to detention and torture by state authorities was an actual or perceived association with the LTTE, I have a number of concerns regarding the veracity of the applicant’s evidence and his perceived claimed association with the LTTE. I have noted the applicant’s representative’s submission that credible country information indicates that the Sri Lankan authorities’ screening process to determine individuals involved in the LTTE predominantly relied on individuals identifying themselves and did not have any transparent criteria or definition or procedure. However, the applicant was only at the LTTE camp for one week in 2007. When asked to provide information at his interview on what the LTTE taught him the week he was with them, he said that he was taught physical training and also told the reasons for why they were fighting. The applicant does not mention that any of his personal details or photographs was taken while he was detained by the LTTE. By his own evidence, he said that he did not have any further contact with the LTTE after he had escaped. He does not provide any evidence that his family were approached by the LTTE after he had moved to his aunt’s houses to attempt to locate him or showed any interest in him. When asked whether anyone else from his family were targeted at all he responded, no. Based on the evidence before me, I find it highly unlikely that the applicant would have had any profile that would have attracted attention to the applicant in the manner that he describes.

[21]    As I have not accepted the applicant’s claim that unidentified men attended his home in 2011 and took him to the Mandoor cemetery where he was accused of being part of the LTTE and having brought weapons into the village, I also do not accept that the applicant’s father had attempted to follow the men, eventually found the applicant or took him to the Mandoor hospital to treat his injuries. I do not accept that any men returned to the applicant’s home at any time and conducted a search of the house looking for him and weapons or threatened his family at any time or that there were people watching his house in a suspicious manner.

32    The Authority did not consider that he was a person of interest to the authorities of Sri Lanka as a person of Tamil ethnicity or as an imputed supporter of the LTTE:

[25]    […] Recent country information supports the conclusion that 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 a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport. However, there is evidence that the security forces continue detain individuals who they suspect of having LTTE connections and each case should be considered on the evidence provided.

[26]    Looking at the applicant’s personal circumstances, there is no credible evidence before me that he suffered any harm or was singled out and targeted due to any suspected support for the LTTE. Aside from the incident in 2007 where he was forcibly recruited and detained for about a week at a LTTE camp, he said that he had not been involved with the LTTE and that his family have never been involved with the LTTE. I am not satisfied that the applicant has a profile now, or in the reasonably foreseeable future that would link him to the LTTE. There is no evidence before me to indicate that the applicant is on a ‘stop’ list at the airport. Having regard to the applicant’s evidence and country information, I find there is no real chance of the applicant being harmed by the Sri Lankan authorities or any other group or person on the basis of being a young Tamil male from a former LTTE controlled area now or in the reasonably foreseeable future.

33    The Authority also was not satisfied that he was at risk of persecution as a Hindu, as an illegal emigrant, or as a returning failed asylum seeker. In particular, the Authority considered the risk of persecution as a result of detention, including torture:

[30]    Based on the applicant’s application and evidence at interview, I am satisfied that he left Sri Lanka unlawfully in August 2012. DFAT advises that a returnee such as the applicant will be processed at the airport by the Department of Immigration and Emigration, (DOIE), the State Intelligence Service (SIS) and the Sri Lankan CID Immigration officers check travel documents and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters and this might involve making inquiries of neighbours or the police in the person’s village. I am satisfied that the applicant has no identity concerns, or criminal or security records that would raise the concern of the authorities. I have found that the applicant has no relevant profile as a person with actual or suspected links to the LTTE, or for any other reason, and I am satisfied that he will not be at risk of harm during, or as a consequence of this routine investigation. I find that the authorities will quickly establish that he is not of any interest for any reason.

…

[32]    According to DFAT, all returnees are treated according to these standard procedures irrespective of their ethnicity, and are not subject to mistreatment during their processing at the airport. There is no credible evidence before me that the applicant is a person of any interest to the police, Sri Lankan authorities or any other person or group.

…

[37]    I have considered the evidence before me and while there are reports of failed asylum seekers or Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE and merely being a failed Tamil asylum seeker is not enough, in my view, to give rise to a real chance of harm on return. I do not accept that the applicant will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities for any reason, and I find that the applicant does not face a real chance of persecution on returning to Sri Lanka.

34    The Authority therefore found that he was not owed protection as a refugee under s 36(2)(a) of the Act, nor complementary protection under s 36(2)(aa).

Federal Circuit Court

35    The Appellant’s judicial review application before the Federal Circuit Court relied on different grounds to those relied on in this appeal. It is therefore not necessary for me to consider the reasons of the primary judge for dismissing the application.

The relevant statutory provisions

36    Section 36 of the Act sets out the criteria for protection visas, including in relation to refugee protection (subs (2)(a)) and so-called ‘complementary protection’ (subs (2)(aa)).

37    The Appellant’s Persecution Risk Grounds are directed at the interpretation of ‘real chance’ of persecution for the purposes of the definition of refugee (s 5J(1)(b) of the Act) and the meaning of ‘real risk’ of significant harm for the purposes of the complementary protection criteria (s 36(2)(aa) of the Act). The parties’ submissions were on the basis that ‘real chance’ and ‘real risk’ amounted to the same standard: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33.

38    The fast track review process in relation to certain protection visa decisions is governed by Pt 7AA of the Act. Section 473DB provides that the Authority is to review decisions referred to it on the papers, but s 473DC empowers the Authority to get ‘new information’ (as defined) and s 473DD to ‘consider’ new information in ‘exceptional circumstances’.

39    Section 473DD of the Act provided that:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

40    Relevantly to this appeal, paragraph (b)(ii) requires the Authority to be satisfied that the new information:

(a)    is ‘credible’, in the sense that it is ‘capable of being believed’ as a preliminary filter, rather than as a deliberative assessment of whether the Authority actually believes the information: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42] per Bromberg J;

(b)    is ‘personal information’, being defined by the Act via the Privacy Act 1988 (Cth) as “information or an opinion about an identified individual, or an individual who is reasonably identifiable”, irrespective of whether the information or opinion is true and recorded in a material form; and

(c)    was not previously known, but had it been known by either the Minister or the referred applicant (Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [33] per Gageler, Keane and Nettle JJ), the information may have affected the consideration of the referred applicant’s claims.

41    In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (‘AUS17’) at 500-502, the plurality of the High Court (Kiefel CJ, Gageler, Keane and Gordon JJ) held that s 473DD requires the Authority to assess new information against the criteria in both paras (b)(i) and (b)(ii), and then, providing that at least one of those criteria are met, take that assessment into account in its consideration of whether there are exceptional circumstances under para (a), before concluding that it is prohibited from considering the new information:

[6]     Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.

…

[10]     Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

[11]     Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and (ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and (ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

[12]     ….[T]he Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a).

Consideration

42    I will now address the relevant grounds in the way addressed by the parties, as summarised earlier in these reasons.

The New Information Grounds

43    The Appellant argued that the Authority failed to consider and to determine if “new information” in the statutory declarations submitted to the Authority was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims” within the meaning of s 473DD(b)(ii) of the Act, before determining that there were not “exceptional circumstances to justify considering the new information” within the meaning of s 473DD(a) of the Act. This was said to be an error because, per AUS17, in order to assess whether exceptional circumstances exist under s 473DD(a), the Authority must first consider whether the situation meets the requirements of s 473DD(b). Although the Appellant accepted that the Authority appeared to be satisfied as to para (b)(i), it submitted that the Authority did not consider or satisfy itself as to para (b)(ii).

44    Had it done so, it was submitted that it ought to have found that para (b)(ii) was satisfied, as the information was credible (in the sense of not being inherently unbelievable), personal (being about the Appellant’s situation), not previously known (to the Minister) and had it been known, the new information about the later visit to the Appellant’s home in December 2016 and his uncle’s imputed involvement in the LTTE may very well have affected the consideration of the Appellant’s claims, both as to specific recent risk to the Appellant, and as to the Appellant’s general credibility.

45    It was submitted that the Authority’s legal error was material and jurisdictional. In addition, it was submitted that if the Authority had considered the criteria required by para (b)(ii), the Authority would or should have concluded that there were ‘exceptional circumstances’ to consider the new information pursuant to para (a), because the new information was critical evidence in support of an application for protection from serious harm.

46    In my view, the New Information Grounds cannot be sustained. It is true that the Authority’s reasons do not expressly state that it considered, pursuant to s 473DD(b)(ii), whether new information contained in the statutory declarations was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”. However, the reasons demonstrate that the substance of s 473DD(b)(ii) was considered. As stated by Kenny J in FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [68]:

the Court is not required to engage in a formulaic consideration of s 473DD(b) and it may be able to infer that (b)(i) and (ii) have been satisfied, even if the precise statutory language of those provisions has not been used

and

it is relevant that the [Authority’s] duty to give reasons under s 473EA does not require it to give reasons for the exercise or non-exercise of a procedural power, such as ss 473DC or 473DD.

47    The Authority read and was aware of the content of each statutory declaration, having summarised them at [9]-[10] of the Decision. In particular, the Appellant’s statutory declaration included specific submissions addressing s 473DD(b)(ii) in respect of the new information included in his, and his relative’s, statutory declaration. It specifically contended that the new information was “credible”, “personal” and “was not known by the Delegate, and had it been known may have affected the consideration” of his claims.

48    The Authority repeated these submissions at [9] of the Decision (although it referred to them as the representative’s submissions, when in fact they were made by the Appellant directly in his statutory declaration). The Authority at [10] then detailed certain circumstances relevant to the consideration of the new December 2016 information and the information about the Appellant’s relatives, in turn.

49    First, in addressing the new information about the approach claimed to have been made to the Appellant’s family in December 2016, the Authority observed at [10]:

I note that the [Appellant] was represented at his interview which was held on 8 November 2016, the incident in question happened in December 2016 and the decision was not made until 3 February 2017. The [Appellant] and his representative were made very aware that the onus was on them to provide any information relevant to the [Appellant’s] protection claims at his interview. There is no suggestion by the [Appellant] or his representative that the [Appellant] became aware of this incident after the delegate’s decision. I am not satisfied that this information could not have been provided to the delegate before a decision was made.

50    The last sentence is directed at s 473DD(b)(i). In my view, in circumstances where the Authority was aware of the submissions made regarding para (b)(ii), the proper inference is that the Authority also considered that the new information was not “credible” because the Appellant, who was represented, had not provided the information to the delegate when he had the opportunity to do so and sought to rely on the information only after an adverse decision, without explaining the circumstances of the prior non-disclosure. Accordingly, in my view, it can be inferred that the Authority considered and was not satisfied as to s 473DD(b)(ii).

51    In any case, I also consider that even if the Authority erred by not considering s 473DD(b)(ii), its error was not material and no jurisdictional error arises as there is no realistic possibility the Authority might have reached a different outcome if not for the error, the onus of proof for which is to be borne by the applicant for judicial review: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46] per Bell, Gageler and Keane JJ, as endorsed by the majority of the High Court again in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [2]-[3] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The Authority did not accept the Appellant had been abducted in 2011, and did not accept thereafter “that any men returned to the [Appellant’s] home at any time and conducted a search of the house looking for him and weapons or threatened his family at any time or that there were people watching his house in a suspicious manner”: Decision [21] (emphasis added). Given that the Authority had wholly rejected the Appellant’s previous five claims, there was no realistic possibility the Authority could or would have reached any different conclusion about the alleged December 2016 approach, which was described in the Appellant’s statutory declaration in only two sentences as follows: “In December 2016, these same people also questioned my family as to my whereabouts. My family told them that I am overseas”.

52    Second, in addressing the new information about the Appellant’s relatives’ claimed association with the TNA and LTTE, the Authority observed at [10]:

The information about his family set out in his declaration outlines relatives of the applicant being associated with the Tamil National Alliance (TNA) and the LTTE. I am not swayed by the representative’s submissions as to why the information should be considered. The [Appellant] was given a number of opportunities to discuss his family in Australia at his interview. He was asked whether he had family members involved with the LTTE to which he responded, no. Both the [Appellant] and the [Appellant’s] representative were given the opportunity at his interview to put forward any further claims for protection. The attached statutory declaration of U is undated, unsubstantiated and does not provide any references to the [Appellant].

53    Following the Authority’s assessment of the December 2016 information and in commencing the assessment of the relatives’ information, the Authority says “I am not swayed by the representative’s submissions as to why the information should be considered”. In the Minister’s submission, this indicates that the Authority did explicitly respond to the Appellant’s specific submissions as to s 473DD(b)(ii) in respect of the information concerning the relatives. Based on my observation at paragraph 48 above, I accept that this statement evidences that the Authority considered the Appellant’s s 473DD(b)(ii) submissions and was ‘not swayed’ or not satisfied. The reference to the ‘representative’s submissions’ may also indicate that the Authority was also referring to the submissions extracted above at paragraph 28 of these reasons relating to the link between the Appellant’s imputed profile as a LTTE supporter and his relatives’ affiliations. To that extent, the Authority can also be understood to be rejecting specifically the representative’s submissions which in substance is to the effect that the relatives’ information ‘may have affected the consideration’ of the Appellant’s claims, within the meaning of s 473DD(b)(ii).

54    The Authority went on to assess specifically the circumstances relating to the provision of the new information about the Appellant’s relatives. I infer that the Authority found that the new information could have been provided before the delegate’s decision but was not provided (going to para (b)(i)) and further, that as a result of the Appellant’s failure to disclose this information previously and the nature of the uncle’s declaration itself, it was not “credible” (in the sense of being “capable of being believed”) and so could not have affected the consideration of the Appellant’s claims, and so did not satisfy para (b)(ii). In particular:

(a)    the observation that the Appellant had previously said “no” to questions about whether any of his family members had been associated with the LTTE in circumstances where he was on notice of the importance of providing information at that stage of the process goes to the Authority’s assessment of the information’s credibility when sought to be relied upon at a later date without explanation for the prior non-disclosure; and

(b)    the observation that the Appellant’s uncle’s statutory declaration was “undated, unsubstantiated and does not provide any references to the [Appellant]” highlights the fact that the information in the declaration lacked any corroboration or independent support, and so goes to the Authority’s assessment of the information’s credibility as well as its ability to affect the Authority’s overall consideration of the Appellant’s claims.

55    Further, even if the Authority erred by not considering s 473DD(b)(ii), on balance I consider that its error was not material and no jurisdictional error arises as there is no realistic possibility the Authority might have reached a different outcome if not for the error. I have considered whether putting all the “new information” together gives greater weight to the Appellant’s claims, but in view of the Authority’s findings at Decision [19] to [21] I do not consider that even on this basis the “new information” would have realistically altered the conclusion of the Authority. I do not consider that it would have assisted the Appellant in relation to credibility or the ability of the information to affect the Authority’s consideration of the Appellant’s claims, having regard to the Authority’s very clear view that the Appellant’s imputed LTTE profile was not made out and the approaches of the ‘plain-clothed armed men’ fabricated.

56    In light of the above conclusions as to proposed ground 1(a), the Authority’s reasons are not affected by jurisdictional error by reason of it failing to consider relevant considerations in respect of s 473DD (proposed ground 2(a) and 2(b)).

57    Having considered in substance the relevant matters required by s 473DD, I also find that the Authority was not legally unreasonable in its conclusion that the new information did not satisfy each of s 473DD(a) and (b) (proposed ground 3(a)).

58    Therefore, proposed grounds 2(a), 2(b) and 3(a) have no merit.

The Persecution Risk Grounds

59    The Appellant submitted that the Authority erred in interpreting or applying the term ‘real chance’ of persecution in s 5J(1)(b) of the Act and ‘real risk’ of significant harm in s 36(2)(aa) of the Act, shown by its findings at Decision [19] and [20]:

I find it implausible that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant personally and attended his home three and a half years after the applicant was detained at a LTTE camp for one week. Further, I find it unbelievable that these men then took the applicant on their motorbike to a cemetery where they beat him, held a gun to his head, accused him of being part of the LTTE, for having brought weapons into the village and told him that they would be coming to collect the weapons and when they returned he had to hand over all of the weapons or he would be killed. I do not accept that this incident took place and I am of the view that the applicant fabricated this aspect of his evidence to enhance his protection claims.

…

Based on the evidence before me, I find it highly unlikely that the applicant would have had any profile that would have attracted attention to the applicant in the manner that he describes.

60    The Appellant submitted that the rejection of the claim that the Appellant was suspected, abducted, beaten, threatened and later searched for was based on a view that the Authority took of the likelihood “that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the applicant personally and attended his home three and a half years after the applicant was detained at a LTTE camp for one week.” It was submitted that while it was open to the Authority to form a view of this likelihood, it was not reasonably open to the Authority to deny the real chance that these men had received information which led to them assuming the Appellant had a longer or more important role in the LTTE than he did.

61    It was noted that the Authority accepted that “that the key risk factor is whether a Tamil has actual or perceived links to the LTTE and merely being a failed Tamil asylum seeker is not enough … to give rise to a real chance of harm on return.” It was submitted that it was therefore critical to the decision whether the Authority accepted the abduction claim.

62    The substance of the Persecution Risk Grounds is that the Authority either:

(a)    erred in understanding the ‘real chance’ and ‘real risk’ tests – that is, a chance that is ‘not remote’ (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379) – which led to its unreasonable or illogical findings about the Appellant’s profile with the LTTE resulting from his claimed abduction in 2011; or

(b)    erred by making unreasonable or illogical findings about the Appellant’s profile with the LTTE resulting from his claimed abduction in 2011, which caused it to misapply the ‘real chance’ and ‘real risk’ tests.

63    I do not accept these submissions. The Authority made no legal error in assessing the Appellant’s claim to have been abducted in 2011. I come to this view for the following reasons:

(a)    The Appellant made no positive claim, and presented no evidence, to the effect that the people who abducted him in 2011 had received information about him having a more prominent profile with the LTTE than was the case.

(b)    The Authority did not accept the Appellant’s claim that the men who abducted him would have assumed he was working for the LTTE (and was hiding weapons for them) during the time he was absent from his home and living with his aunt in circumstances where the Appellant had not claimed that anyone had searched for him at his parents’ house prior to 2011 (during the time he was living with his aunt): Decision [19]. This finding was open to the Authority to make.

(c)    While accepting that a profile may arise from “actual or perceived association with the LTTE” and noting that “credible country information indicates that the Sri Lankan authorities’ screening process to determine individuals involved in the LTTE predominantly relied on individuals identifying themselves and did not have any transparent criteria or definition or procedure”, the Authority found it “highly unlikely that the [Appellant] would have had any profile that would have attracted attention” based on the following evidence (Decision [20]):

(i)    he was only at the LTTE camp for one week in 2007;

(ii)    he did not provide evidence of his personal details or photograph being taken while he was in the LTTE camp;

(iii)    his own evidence was that he did not have any further contact with the LTTE after he had escaped;

(iv)    he did not provide any evidence that his family were approached by the LTTE after he had moved to his aunts’ houses to attempt to locate him or that the LTTE showed any interest in him; and

(v)    his evidence was that no one else in his family had been targeted by the LTTE (putting aside the new information that was provided in his uncle’s statutory declaration, which the Authority did not consider pursuant to s 473DD).

(d)    The Authority found it “implausible that unidentified men from a Sri Lankan authority or a paramilitary organisation would have known the [Appellant] personally and attended his home three and a half years after the applicant was detained at a LTTE camp for one week” and “unbelievable that these men then took the [Appellant] on their motorbike to a cemetery where they beat him, held a gun to his head, accused him of being part of the LTTE, for having brought weapons into the village and told him that they would be coming to collect the weapons and when they returned he had to hand over all of the weapons or he would be killed”: Decision [19]. I infer that the claims found ‘implausible’ were considered by the Authority to be unlikely as a matter of common perception, but also as supported by the Authority’s findings as to the Appellant’s lack of LTTE profile having regard to the matters at (a) to (c) above. These findings also support the Authority’s conclusion regarding the claims found to be ‘unbelievable’. In addition, although not referred to in the Authority’s reasons, the delegate had also not been satisfied as to the credibility of the Appellant’s claims on the basis of a number of other factual observations, including the following:

(i)    the Appellant had been unable to answer where the ‘plain-clothed armed men’ had asked him to surrender himself; and

(ii)    the inconsistency of the Appellant’s assertion that the armed men’s intelligence capabilities were such that they could so seriously misjudge the Appellant’s profile with the LTTE, and yet be such that it required the Appellant to go into deep hiding and regularly move in order to evade capture.

Although not to be attributed to the Authority, the delegate’s further factual reasons support the view that the impugned factual findings of the Authority were not irrational.

64    Accordingly, I do not accept that the Authority made any jurisdictional error as pleaded at proposed grounds 1(b) and 3(b), and in my view these grounds are of no merit.

Harm in Detention Ground

65    The following can be accepted as the Appellant submitted. The Authority must consider each necessary and relevant consideration and integer of the claim. It must consider a material question of fact, squarely raised by the material before the Authority: Dranichnikov v Minister for Immigration and Citizenship (2003) 197 ALR 389; [2003] HCA 26 at [24]. An active intellectual engagement is required in considering a relevant consideration: Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [37]. The omission of a question or finding from the Authority’s statement of reasons may show that the Authority did not consider it, and may show jurisdictional error.

66    It was submitted that the Authority failed to consider with an active intellectual engagement the question whether the Appellant had a real chance of suffering serious or significant harm while in detention on his return to Sri Lanka as an illegal emigrant and a failed Tamil asylum seeker, when this was a question squarely raised by the material before it relating to the abuse of human rights and torture in Sri Lanka, including for example:

[Freedom From Torture, 2015] The Sri Lankan military, police and intelligence services have continued to practise torture … Those at particular ongoing risk of torture include Tamils with a real or perceived association with the Liberation Tigers of Tamil Eelam (LTTE) at any level and whether current or historic … many returning to Sri Lanka with a real or perceived past connection to the LTTE, at whatever level and whether directly and/or through a family member or acquaintance, have been tortured and interrogated about their activities and contacts in the UK.;

[Amnesty International, 2014] Members of the ethnic minority Tamil community deemed to have ties to the defeated Liberation Tigers of Tamil Eelam (LTTE) faced serious abuse. Torture, rape, and ill-treatment in custody by the security forces remain widespread.

[Human Rights Watch, 2015] … even after the decisive defeat of the LTTE, certain branches of the police continued to routinely engage in torture, including sexual abuse, to extract confessions or information from suspected LTTE members or supporters. In addition, police have been implicated in enforced disappearances, extrajudicial executions, and abductions of those suspected, however loosely, of ties to the LTTE.

[International Truth and Justice Project, 2016] A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture them.

[Freedom From Torture, 2015] To think that torture no longer takes place just because a few new faces are in places would be naïve – it takes many years to change practices, attitudes, and a country where torture has become the norm…. A culture of torture prevails at all levels in Sri Lanka.

[Human Rights Watch, 2015] Police abuses against criminal suspects in Sri Lanka, including arbitrary arrests, due process violations, and torture are common and widespread. In many cases, the police use torture and other forms of coercion as a shortcut to obtain confessions or other information to facilitate convictions. Some of the cases reported to Human Rights Watch involved very minor alleged offenses such as petty theft or vandalism… The abuses documented by Human Rights Watch often occurred in police custody, and appeared to end when the victim was finally produced before a magistrate and remanded to jail pending trial.

67    There were many other sources cited and quoted in the material before the Authority, some explicitly directed to the risk of torture, cruel or inhuman or degrading treatment in detention. It was submitted that this squarely raised for the Authority the potentially critical question of the risk to the Appellant in detention because of the culture of abuse by the police and authorities, but the Authority rejected the risk of harm to the Appellant because it discounted any risk to those not imputed as supporters of the LTTE.

68    I do not accept the Appellant’s submissions.

69    The Authority was satisfied the Appellant departed Sri Lanka illegally, but, on the basis of country information contained within the 2017 DFAT Country Information Report (‘DFAT Report’) found that the relevant authorities would “quickly establish that he is not of any interest for any reason” because he “has no identity concerns, or criminal or security records that would raise the concerns of authorities” and “has no relevant profile as a person with actual or suspected links to the LTTE”: Decision [30].

70    The Authority adequately summarised country information in the DFAT Report about what happens on return to Sri Lankan to a person, such as the Appellant, who departed Sri Lanka illegally. The Authority found that he “may be arrested and charged” but that “no returnee who was merely a passenger on a people smuggling venture has ever been given a custodial sentence” and that the imposition of a fine would not constitute serious harm: Decision [33].

71    Based on country information in the DFAT Report, the Authority found the Appellant would not face a risk of harm in circumstances where he pleaded not guilty and, as a result, was released and granted bail on a personal surety, or may be detained before being granted bail. However, it found that such detention does not constitute serious harm: Decision [35].

72    The Authority also found that the detention the Appellant may face by reason of having departed Sri Lanka illegally was pursuant to a law of general application and, accordingly, could not constitute persecution, and in circumstances where it did not accept the Appellant “will be imputed with pro-LTTE or anti-government dissident beliefs by the authorities for any reason” the Authority found he “does not face a real chance of persecution on returning to Sri Lanka”: Decision [37].

73    The Authority’s reasons state that it considered all the country information before it and weighed all that information (Decision [37]):

I have considered the evidence before me and while there are reports of failed asylum seekers or Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE and merely being a failed Tamil asylum seeker is not enough, in my view, to give rise to a real chance of harm on return.

74    I accept that each report set out in the Appellant’s submissions is not specifically mentioned, but on a fair reading of the decision the country information contained therein was considered by the Authority in its consideration of the “reports of failed asylum seekers or Tamils returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods”.

75    The Authority is not obliged to comment on every item of material before it or to explain why it rejected a particular item, or attributed less weight to it than to another item. It was open for the Authority to rely, as it did, on the DFAT Report in makings its findings about the risk of harm the Appellant would face on return as a person who had departed Sri Lanka illegally.

76    I see no merit in this proposed ground as I find that the Authority considered the claim properly.

Disposition

77    The application for leave to file an amended notice of appeal and the appeal itself is dismissed with costs.

Associate:

Dated:    17 February 2022