Federal Court of Australia

CIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 549

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority (Authority). By its decision, the Authority affirmed the decision of a delegate of the respondent Minister not to grant the appellant a Safe Haven Enterprise Visa (SHEV).

2    The appellant is a Tamil citizen of Sri Lanka. He arrived in Australia in late August 2012 as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act). An officer of the Minister’s Department interviewed him as such on 18 January 2013.

3    By letter dated 14 September 2015, the Department invited the appellant to lodge a visa application, including for a SHEV, and he subsequently did so. In a statement accompanying his application, he stated that:

In addition to being a Tamil, I have obvious injuries as a result of the bomb blast which occurred in January 2009. One of my legs is shorter and I have a big scar. I would be targeted again by the CID because of my injuries. ...

In Australia, approximately one year ago, I had an operation where they removed a piece of shell from my right ankle. There is still a piece of shell in my neck and a scar on the back of my body. The piece of shell in my neck continues to be a big problem. It is in a dangerous position in my neck. ...

The Army and CID have access to all the information about me, across Sri Lanka. I would be a target wherever I went. ...

The appellant attended an interview with a Departmental officer in October 2016 and his migration agent made submissions to the Department on his behalf.

departmental decision-making

4    By letter dated 18 November 2016, a delegate of the Minister informed the appellant that his application for a SHEV was refused. The delegate did not accept that the appellant’s family had “an ongoing profile with the Sri Lankan authorities” or that the appellant had “a profile as an LTTE supporter”. The reference to LTTE was a reference to the Liberation Tigers of Tamil Eelam.

5    As the appellant said in his written submissions in this Court, the delegate also rejected his claim that his return to Sri Lanka involved “a real chance of serious harm because of being a failed asylum seeker having unlawfully departed Sri Lanka”. As to this claim, the delegate stated:

A number of reports have commented on the arrival processes at Colombo airport for failed asylum seekers. The information stated that the screening process for returnees is the same for all persons returning, whether voluntarily or escorted, and the process is not affected by ethnicity. ...

Once the returnee has satisfied the authorities as to their identity and that there are no outstanding criminal or security matters they are released. If they had left Sri Lanka illegally by boat, they may be held in remand until the next sitting of the court in Negombo, after which they are released on bail, or on their own recognisance, pending further action. The usual penalty for an illegal departure is a fine ... The screening process is similar for all persons returning to Sri Lanka voluntarily or by escort on temporary travel documents, regardless of ethnicity.

The delegate continued:

I note the various Human Rights Watch (HRW) calls in 2012 for the UK to halt deportation of all failed Sri Lankan asylum seekers ... I have also considered the most recent [Freedom From Torture] report from May 2016. Without making any findings on the veracity of the claims cited in those reports, the accounts of their claims seem to indicate in nearly all cases there were accusations of specific LTTE involvement or links rather than people being singled out for being a failed Tamil asylum seeker.

The [Freedom From Torture] further reports that in the majority of cases the victims had an actual or suspected LTTE connection or links to separatist activities. The [Tamils Against Genocide] report also indicated a pro-LTTE profile or being seen as a critic of the current government as being risk factors. This was also noted in a 2012 UK Home Office report on returnees to Sri Lanka that examined these claims. A January 2016 International Truth and Justice Project report also made similar observations of the profiles of the victims of torture. I also give weight to the fact that in its latest (21/12/2012) guidelines for Sri Lanka, the UNHCR does not mention failed asylum seekers, failed Tamil asylum seekers, or Tamils returning after residence abroad as being identified as being at risk of persecution.

I have found that the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country. There is no information to suggest that Tamils who have lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka or for being a failed asylum seeker. I therefore find the applicant does not hold a well-founded fear of persecution on account of being a Tamil failed asylum seeker.

In regards to the applicant’s illegal departure, I note the applicant’s identity is likely to be checked and he would be questioned at the airport on arrival. However, noting the applicant does not have a criminal background and was not of interest to the authorities when he left the country, I find he would not be exposed to harassment or any type of harm that would amount to serious harm on his return.

Even if he were to face charges for an illegal departure, there is no information to suggest that anyone has been given a custodial sentence for departing illegally. For people who have been convicted of illegal departure they have faced fines of between 5000 and 50000 rupees. The above information indicates that the applicant is likely to be questioned, briefly detained and fined as a result of departing Sri Lanka illegally. No information could be found to suggest that returnees being held for short periods in remand on illegal departure changes have faced ill-treatment while on remand. ... I am satisfied that a short period of detention to facilitate the processing of such charges and fines does not amount to serious harm and therefore does not involve persecution.

Considering the above, I am satisfied the applicant does not hold a well-founded fear of persecution on account of being a failed (Tamil) asylum seeker who departed Sri Lanka illegally.

6    The delegate addressed “whether the applicant’s Tamil ethnicity in itself would lead to an imputed association with the LTTE”. After referring to various items of country information, including a 2015 DFAT report, the delegate stated:

I have also considered the UK Home Office report on Tamil separatism in Sri Lanka dated 19 May 2016, which states that in general 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, would not warrant international protection.

There was a footnote to this sentence, referencing OGD7C848D17: UK Home Office, “Sri Lanka: Tamil separatism. Version 2.0”, 19 May 2016, Section 3. I shall refer to this report hereafter as the “2016 UK Home Office Report”. I note that this passage of the delegate’s reasons and the 2016 Home Office Report were emphasised in the parties’ submissions in the appeal.

7    The delegate went on to state:

Having regard to the above, I find the chance of being imputed with an LTTE connection for reasons of the applicant’s Tamil ethnicity is remote. I also note that the applicant was not politically active in Sri Lanka and that he does not have a political profile of any kind.

Overall, I find that being Tamil in Sri Lanka in itself is not a reason for the applicant to be imputed with an LTTE connection. I am therefore satisfied the applicant does not hold a well-founded-fear of persecution for this reason.

8    The delegate also addressed the appellant’s claims that his origins as a person from a former LTTE-controlled area would bring him under suspicion. The delegate noted that:

[A]n analysis of reports over the last few years from a range of sources, including the UNHCR, the United Kingdom Border Agency, the United States Department of State, the Norwegian Country of Origin Information Centre (Landinfo), and Australian DFAT does not support a conclusion that Tamils, including young Tamil men from former LTTE-controlled areas, are being systematically targeted and subjected to serious harm amounting to persecution because of their race and/or area of origin.

The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The UK Upper Tribunal (Immigration and Asylum Chamber) in 2013 concluded that the LTTE in Sri Lanka itself is a ‘spent force’ and there have been no terrorist incidents since the end of the civil war. ...

This last sentenced ended with another footnote reference to the 2016 UK Home Office Report, in particular, at [2.3.4]. This reference assumed some significance in the parties’ final submissions in this case.

9    The delegate continued:

Overall, I have found that the applicant was of no interest to the Sri Lankan authorities for any reason when he left the country. Given the improved situation in the north of the country and noting the applicant does not have real or perceived links to the LTTE, I find the chance of him facing persecution for this reason is remote ... As such I find the applicant does not have a well-founded fear of persecution for being a Tamil from the north of the country or for being from an area previously controlled by the LTTE.

10    The delegate found that the appellant would not face a real chance of persecution if he were to return to Sri Lanka and did not satisfy ss 5H(1) or 36(2(a) of the Act. For much the same reasons, the delegate found that he did not satisfy s 36(2)(aa) of the Act.

11    The delegate’s decision was referred to the Authority for review on 10 January 2017. His lawyer and migration agent provided written submissions dated 7 February 2017, referred to hereafter as the “February 2017 Submissions”.

12    The February 2017 Submissions maintained that the country information supported a finding that, if returned to Sri Lanka, there was “a real risk and real chance” that the appellant would be interrogated by the Sri Lankan authorities and that he would attract their adverse interest. These submissions included references to various items of country information, including statements by the UK Upper Tribunal in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (referred to below as the “UK Upper Tribunal Decision”). At [20], these submissions stated:

Additionally, there is significant evidence that any period of detention – even brief – will subject the Applicant to a real risk of the types of significant harm defined in s 5(1) of the Act. On 3 July 2013, the UK Upper Tribunal (Immigration and Asylum Chamber) made a country guidance decision which replaced all previous UK country guidance on Sri Lanka which made the following finding: ‘If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection’ [citing GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC)]. The UK Upper Tribunal relied on the expert opinion of Professor Anthony Good who ‘observed that a great majority of people detained for interrogation were ill-treated’. ...

(Emphasis added)

The emphasised statement attributed to the UK Upper Tribunal Decision was also important in the appellant’s submissions. This statement was defined in the Appellant’s Notice of Appeal as the “Information”, and was at the heart of the appeal. The parties’ written submissions addressed the merits of the appeal on this basis.

13    This was not the only reference to the UK Upper Tribunal Decision in the appellant’s February 2017 Submissions. It is also worth noting that they included a reference to the UK Upper Tribunal Decision as regards the appellant’s activities in Australia. Paragraph [12] of these submissions stated:

According to the most recent UK Upper Tribunal country guidance decision, GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC):

(2)    The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

(3)    The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.

14    By letter dated 11 May 2017, the Authority notified the appellant that it had affirmed the delegate’s decision. In its reasons for decision, under the heading “Information before the IAA”, the Authority commenced by addressing the information before it. The Authority began by stating, at [2], that it had regard to the material referred to it by the Secretary under s 473CB of the Act. Regarding the appellant’s February 2017 Submissions, the Authority stated:

[3]    On 7 February 2017 the IAA received a submission from the applicant’s representatives. The submissions reiterates claims made to the delegate and contains arguments in response to issues in the delegate’s decision and a discussion of the case law, as well as Refugee Review Tribunal and other IAA decisions. To that extent I consider that this does not constitute new information for the purposes of the Act.

15    The issue of the “new” “publicly available sources of country information” was addressed at [13] and [14] of the Authority’s reasons. The Authority stated:

[13]    The IAA submission also refers to five publicly available sources of country information which were not before the delegate and are new information. Four of these sources were published prior to the delegate’s decision. The applicant’s then representative was present at the SHEV interview, during which the delegate advised she would take into consideration any further information the applicant wished to provide, if received prior to making her decision. The applicant’s then representative sent the delegate a post-interview written submission which contains similar country information to the IAA submission before me, regarding the post-war environment and the situation for Tamils and returnees to Sri Lanka. I am satisfied the applicant was given the opportunity to address the issues raised in the country information he has now submitted to the [Authority]. I am not satisfied exceptional circumstances exist to justify considering these four new sources.

[14]    The fifth source contained in the IAA submission is the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka of 24 January 2017. Given the date of publication, I am satisfied this report was not, and could not have been provided to the Minister before the delegate’s decision. This DFAT report contains information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad, which are issues central to the applicant’s claims. The delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report updates. I am satisfied that there are exceptional circumstances to justify considering this new information.

16    I interpolate here that the parties accepted that the Authority’s reference to “five publicly available sources of country information” in [13] of its reasons included the UK Upper Tribunal Decision: see below at [39].

17    Having addressed the information before it, the Authority set out the appellant’s claims and assessed them. The Authority was not satisfied that the appellant had a well-founded fear of persecution because he was “a young Tamil male from the north of Sri Lanka ...”. The Authority found that:

[34]    Overall, country information before the delegate overall indicates the situation for Tamils has improved, including positive political developments for Tamils on both the provincial and national level. In 2016 the UK Home Office concluded: “Simply being a Tamil does not of itself give rise to a well-founded fear of persecution or serious harm in Sri Lanka. The onus will be on the person to demonstrate that they will face on return ill-treatment from the current, as opposed to the previous, government.”

This paragraph is also important to the parties’ submissions, as explained below.

18    The Authority went on to reject the appellant’s claims “of being targeted by the CID and EPDP in 2012” as not credible: it was not satisfied that he was “of interest to the authorities for any reason”. The Authority also rejected the appellant’s claims arising from have been an unsuccessful asylum seeker in Australia and having departed Sri Lanka illegally. Ultimately the Authority concluded that the appellant did not meet the requirements of ss 5H(1) and 36(2)(a) or 36(2)(aa) of the Act.

the federal circuit court proceeding

19    The appellant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court. The primary judge dismissed an amended application on 8 April 2020. The one unsuccessful ground forms the substance of the one ground of this appeal from his Honour’s judgment. It is unnecessary to summarise the reasons of the primary judge. Many of the same issues were canvassed on the appeal: the case for the appellant altered to some extent, however, over the course of the hearing. The respondent Minister, properly it seemed to me, made no point about this change in emphasis.

20    The one ground of appeal is as follows:

1.    The primary judge erred by failing to find that the Immigration Assessment Authority incorrectly concluded that the information that ‘if a person is detained by the Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection’ (the Information) was new information, and failed to consider that Information when considering the Applicant’s claim that he faced a real risk of significant harm upon return to Sri Lanka.

Particulars

(a)    The Information appeared at [2.3.4] of the UK Home Office report which was before the delegate at the time of her decision, and cited in her reasons at footnotes 7 and 8.

(b)    The primary judge was wrong in finding that the Information was new information because the Information was ‘not identical in content’ and ‘the sentences appear in a different sequence, formatting and were from a different source’ when compared to the words of [2.3.4] of the UK Home Office report, because:

(i)    contrary to the primary judge’s factual finding, the words comprising the Information were only one sentence and replicated verbatim at [2.3.4] of the UK Home Office report;

(ii)    on a proper construction of the definition of ‘new information’ in s 473DC of the Migration Act 1958 (Cth) (being a reference to ‘documents or information’), when information happens to also be in a document not before the delegate at the time of the s 65 decision, the information does not become ‘new information’ just because of that happenstance

(c)    The primary judge was wrong in finding that the Information was nevertheless considered by the IAA, and therefore the misidentification of the Information as new information ‘could not have possibly given rise to a different outcome’, because there was no evidence before the Court upon which the inference that the Information was considered ought to have been made.

(d)    Further particulars may be provided after the primary judge settles the transcript of the ex tempore reasons, which as at the time of filing this notice of appeal has not yet occurred.

the parties’ submissions

Appellant’s Argument 1 – Not “new information”

21    In written submissions, the appellant argued that the information that his February 2017 Submissions attributed to the UK Upper Tribunal Decision was also contained in the information before the delegate: see [12] above. This was identified as the information that:

If a person is detained by the Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection.

As already noted, this was also the “Information” with which the Notice of Appeal was concerned. In his Notice of Appeal and written submissions filed prior to the hearing, the appellant’s primary argument was that this information was not “new information” for the purposes of s 473DC of the Act. The appellant submitted that reference to [2.3.4] of the 2016 UK Home Office Report, cited in a footnote in the delegate’s decision record (see [8] above), showed that it too contained the same statement and conveyed the same information. The appellant submitted that the primary judge should have held that the Authority’s characterisation of this information as “new information” was erroneous.

22    Counsel for the appellant submitted at the hearing that the identified information should not be defined to include the author or date of the statement in which the information was conveyed (the UK Upper Tribunal, 2013). Counsel for the appellant also submitted (in reply) that the effect of [12] and [20] of the appellant’s February 2017 Submissions was merely to invite the Authority to consider the quotations at [12] and [20], rather than the whole of the UK Upper Tribunal Decision.

Appellant’s Argument 2 – Consideration of the information

23    The appellant submitted that there was nothing to support the primary judge’s conclusion that the Authority had in fact had regard to the identified information: see [21] above. Such a conclusion, so the appellant contended, was inconsistent with the Authority’s view that this information was “new information”. Moreover, citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [50] and [52], the appellant submitted that the Authority would be expected to refer to this information because it was inconsistent with the other (DFAT) information on which it relied. In reply, counsel for the appellant submitted, in substance that in conformity with MZYTS the Authority was obliged to engage with the appellant’s response to the delegate’s finding that he would not face a serious chance or significant risk of harm if returned to Sri Lanka as a failed asylum seeker who had departed Sri Lanka unlawfully.

24    Counsel for the appellant further submitted at the hearing that the absence of a reference in the Authority’s reasons to the information in [2.3.4] of the 2016 UK Home Office Report precluded the possibility that the Authority had in fact considered the information identified at [21] above. Counsel submitted it should not be inferred from the fact that the Authority had regard to that Report for some purposes that it also had regard to the information in [2.3.4].

Appellant’s Argument 3 – Materiality

25    In written submission, the appellant argued that the error on the Authority’s part was material.

This was because the IAA accepted that people who had illegally departed Sri Lanka and who were returned ‘can remain in police custody at the airport’ or ‘at a nearby prison’: [41]-[42]; but adopted the conclusion from DFAT that ‘detainees are not subject to mistreatment’ whilst in custody for that processing upon return to the country: [58]. In contrast, the Information on its face (whether attributed to the UK Home Office Report or the UK Upper Tribunal Judgment) tended to contradict the absoluteness of the DFAT conclusion. Had the Information not been wrongly excluded, the IAA would have had evidence before it that ‘there remains a real risk of ill treatment or harm requiring international protection’, such that there would have been a realistic possibility of a different conclusion.

26    Counsel for the appellant submitted that [20] of the appellant’s February 2017 Submissions was designed to address the delegate’s key finding that the appellant would not face a real chance or real risk of serious or significant harm on his return to Sri Lanka as a consequence of being a failed asylum seeker who had left the country unlawfully. Counsel contended that the Court could not determine that a failure to consider the material at [2.3.4] of the 2016 UK Home Office Report was immaterial “without descending to the merits”.

The Minister’s Response to Argument 1

27    In written submissions filed before the hearing, the Minister submitted that whether information is properly described as “new” is a question of fact to be determined as a matter of substance, having regard to the circumstances of the case. The Minister accepted that information will not necessarily be “new” merely because it is provided in a different document.

28    The Minister’s principal contention was that the Authority did not make the finding on which the appellant’s case relied: the Minister submitted that the Authority did not find that the “information” as defined in the Notice of Appeal was “new information”. Rather, so the Minister submitted, the Authority’s determination was in substance that there were no compelling circumstances to justify considering four of the five newly identified sources of (country) information, including because the appellant had already provided written submissions to the delegate containing similar country information. The UK Upper Tribunal Decision was, so the Minister submitted, one of these four sources. The Minister submitted that this source was properly characterised as “new” because “[w]hilst the fact of the existence of that decision and the knowledge of some of its content was before the delegate by reason of the [2016] UK [Home Office] Report, the decision or its content were not before the Authority and the Appellant did not rely upon the UK Upper Tribunal decision only to the extent of its congruence with the [2016] UK [Home Office] Report”.

29    Counsel for the Minister emphasised at the hearing that the Authority’s determination not to have regard to four “publicly available sources of information” related to the entirety of various documents, including the whole of the UK Upper Tribunal Decision. Referring to [3] and [13] of the Authority’s reasons, the Minister submitted that the Authority’s determination did not cover the information before the delegate, paragraphs or parts of the appellant’s February 2017 Submissions, or the contents of those submissions insofar as they “were responsive to issues raised by the delegate, reiterated claims made to the delegate or involved a discussion of case law or decisions of the Authority or Refugee Review Tribunal”. The Minister noted that at [13] of its reasons, the Authority showed that it was “very clearly alive to the fact ... that the new country information, as it saw it, being provided on different sources, was similar to country information that had been already presented”.

The Minister’s Response to Argument 2

30    The Minister submitted that the appellant had not shown that the Authority failed to have regard to the information identified in the appellant’s Notice of Appeal. The Minister contended that, bearing in mind the Authority’s references to the 2016 UK Home Office Report, including Part 2.3, there was no basis to infer that the Authority did not give consideration to the information identified in the Notice of Appeal.

31    The Minister submitted that it was uncontroversial that that item of information was not “new information” since it was set out in the 2016 UK Home Office Report at [2.3.4] and in submissions made on the appellant’s behalf to the delegate, “albeit unsourced and unattributed”. The Minister acknowledged that the existence of the UK Upper Tribunal Decision and some of its contents, including the information identified in the appellant’s Notice of Appeal, were matters before the delegate. The Minister submitted that the delegate considered the 2016 UK Home Office Report and the Authority relied on that Report in concluding that the country information before the delegate “overall indicates the situation for Tamils has improved”. The Minister further submitted that the reference to the 2016 UK Home Office Report (see the passage set out at [17] above) “is taken from 2.3.1, within the same part as 2.3.4, and provides an overall conclusion of the matters set out in 2.3 of the UK Report”. In particular, the Minister submitted that, in assessing the risk of persecution or harm faced by a Tamil person on return to Sri Lanka, the 2016 Home Officer Report showed that “it is necessary to have regard to the particular circumstances of the person, including political circumstances which have changed since the UK Upper Tribunal guidance decision was published”.

32    Referring to [33] and [34] of the Authority’s reasons, the Minister submitted that one may infer from the Authority’s reasons that it accepted that the 2016 UK Home Office Report was before the delegate and that this was not “new information”. The Minister noted that [33] of the Authority’s reasons carried footnote 7, which referenced the 2016 UK Home Office Report. The Minister also noted that the quoted passage derived from [6.9.1] of that Report. The Minister further noted that footnote 8 to the last sentence of [34] related to [2.3.1] of the 2016 UK Home Office Report. The Minister submitted the Authority’s reasons at [34] defeated the appellant’s reliance on the Authority’s reference to the DFAT report as supportive of error. Counsel for the Minister submitted:

The context of the UK Home Office report that the Authority considered was directly on point with what was set out and what’s identified in the notice of appeal, but simply identifies that the information had changed somewhat and that it needed to be considered as part of all of the relevant information.

33    Counsel for the Minister further submitted that:

In that same context, and in that same chapter, 2.3.4 is set out, which ... contains the sentence that’s the subject of the notice of appeal. ...

Our submission is not simply that the Authority had the UK Home Office Report, it made some reference to it, we’re done. It’s much more specific. The sentence that’s identified is set out at 2.3.4 of the UK Home Office Report. That sentence obviously sits in a context, and the context is the same context that the Authority considered expressly by quoting 2.3.1. And reading and having regard to what’s said at 2.3.1, in my submission, that paragraph is a summary and an overview of what’s set out in 2.3 as a whole, which includes the relevant sentence but also the critical information that since that decision had been handed down, there had been a change of government, which had led to a change of circumstance.

And that relevant change is expressly identified in 2.3.1, which is what the Tribunal considered. So that taking a common sense approach, having regard to the reasons as a whole, including those paragraphs at 3 and 13 [of the Authority’s reasons], the consideration as a whole was had at [32] – at [33] and [34] and the consideration of the risk of harm arising from the appellant returning to Sri Lanka as having illegally departed or as a failed asylum seeker who is also Tamil and who may also be imputed with an LTTE identity. The Authority came to the conclusion that it did, and in those circumstances, it’s not that the Minister submits an inference ought to be drawn, and that if the Minister doesn’t establish that inference, my learned friend succeeds.

There was, so counsel for the Minister submitted, “nothing surprising or no inference ought to be drawn” from the fact that the Authority did not expressly refer to the statement identified in the appellant’s Notice of Appeal, bearing in mind that: “[t]he identified sentence had not been given any particular prominence, had not been the subject of any specific and detailed submission beyond the submission that the decision of GJ or the country information as a whole, as identified in the submissions, was against the delegate’s consideration”.

The Minister’s Response to Argument 3

34    Both in writing and at the hearing, the Minister concluded with the submission that any error on the Authority’s part in characterising the information as “new information” was immaterial because the Authority had all the information before it, and considered the information relied on by the appellant in the context of the 2016 UK Home Office Report. The Minister further submitted that there was no realistic possibility that consideration of the information (if it did not occur) would have resulted in a different outcome.

CONSIDERATION

35    It would be fair to say that the appellant’s challenge to the Authority’s decision shifted ground at the hearing. The first limb of the appellant’s case, as indicated above, was that the Authority erred in concluding that a specific item of information was new information. This was the information conveyed by the statement:

If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.

It may be recalled that the appellant declined to define this item of information by reference to the author of the statement or the date of its pronouncement and contended that the Authority had erred in finding that this item of information was “new information” within the meaning of s 473DC of the Act.

36    If the Authority had indeed made this finding, then the Authority would have been unable to consider this information unless it was satisfied that the requirements of s 473DD of the Act were met with respect to it. This is because the delegate’s decision was a “fast track reviewable decision”, referred to the Authority for review under s 473CA of the Act. Pursuant to s 473DB of the Act, the Authority was required to review a referred decision by considering the review material provided to it by the Secretary under s 473CB of the Act without accepting or requesting new information and without interviewing the referred applicant: see also Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22]. Section 473DD of the Act provides for exceptions for to this general rule: as to the correct approach to this provision, see AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 495 at [11].

37    For present purposes, one may accept the Minister’s submission that whether information is “new information” within the meaning of s 473DC of the Act is a question of fact, to be determined as a matter of substance, having regard to the circumstances of the case: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58; 285 FCR 381 at [2]-[4] (Allsop CJ), [67], [97] (Kerr and Mortimer JJ); AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [39] (Allsop CJ). One may also agree, as the Minister said, that information will not necessarily be “new” simply because it is provided in another document.

38    The appellant’s first argument fails, however, because the Authority did not make the finding on which the appellant’s argument depended. Paragraphs [2]-[14] of the Authority’s reasons, as the heading to them indicates, concern “Information before the IAA”. When these paragraphs are read as a whole, it is clear that the Authority’s discussion at [13]-[14] was directed, as in fact it said, to “five publicly available sources of information” (emphasis added), none of which it found were before the delegate. These “sources” were identified in the footnotes to the February 2017 Submissions and, like the 2017 DFAT country report mentioned below, each contained country information.

39    The Authority discussed only one of these five sources separately. This was “the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka of 24 January 2017”. At [14] of its reasons, the Authority recorded its satisfaction that this “could not have been provided to the Minister before the delegate’s decision” and that there were “exceptional circumstances” justifying the consideration of this “new information”. The Authority considered the other four “sources” collectively, at [13] of its reasons. In substance, the Authority determined that they ought not to be considered because they did not satisfy the requirements of s 473DD of the Act. While the Authority did not identify these other four sources by name, it can reasonably be inferred that one of these sources was the UK Upper Tribunal Decision, as the Minister submitted and the appellant ultimately accepted. Besides the 2017 DFAT country report, the UK Upper Tribunal Decision was one of the five publicly available “sources” referred to in the appellant’s February 2017 Submissions that was not before the delegate at the time of the delegate’s decision. Although the 2016 UK Home Office Report, which was before the delegate, provided the delegate with some information about the UK Upper Tribunal Decision and some of its contents, the entirety of that Decision was not before the delegate at the relevant time. It was therefore open to the Authority to determine that this “source”, being the whole of the UK Upper Tribunal Decision identified as GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) was “new information”. Since it was not satisfied that this new information met the requirements of s 473DD of the Act, the Authority put it out of account as the Act required it to do.

40    It did not follow from this determination, however, that the item of information identified in the appellant’s Notice of Appeal was also excluded from the Authority’s consideration. As we have seen, this information was also contained in [20] of the appellant’s February 2017 Submissions. The Authority clearly had regard to these submissions. In substance, the Authority expressly determined at [3] of its reasons that these submissions did not constitute “new information” to the extent that the submissions repeated claims made to the delegate, responded to the delegate’s decision, and discussed cases and referred to Tribunal and Authority decisions. Immediately after this, moreover, the Authority identified that the February 2017 Submissions contained “three pieces of information which were not before the delegate” and were therefore “new” information. The Authority proceeded to assess these items of information against the requirements of s 473DD of the Act. None of them was relevant to the information identified in the appellant’s Notice of Appeal or to the UK Upper Tribunal Decision.

41    There is nothing in the Authority’s reasons from which it might reasonably be inferred that the Authority’s determination at [13] about four of the five publicly available sources of information mentioned by the appellant in his February 2017 Submissions also applied to other unidentified parts of the body of the submissions. Rather, at [13]-[14] the Authority stated that it would not accept four of the five country information “sources” identified in the footnotes to those Submissions. The item of information, which was set out at [20] of the appellant’s February 2017 Submissions and relied on in his Notice of Appeal, was not the subject of the Authority’s discussion at [13] of its reasons or otherwise held to be “new information” that did not meet the requirements of s 473DD of the Act.

42    This conclusion is confirmed by the fact that the Authority relied in its reasons on the 2016 UK Home Office Report, presumably on the basis that this Report was before the delegate when the delegate made the decision under review (as was indeed the case). The 2016 Home Office Report at [2.3.4] also set out the information identified in the appellant’s Notice of Appeal.

43    The second limb of the appellant’s case also fails, although by the end of the hearing it had ceased to depend on the first limb of the appellant’s case and had become a free-standing argument. This was because the appellant failed to make out his case that the Authority failed to have regard to the information identified in his Notice of Appeal and at [20] of his February 2017 Submissions. In order to succeed, the appellant was required to show that, having regard to the evidence and other material before the reviewing court, on the balance of probabilities, the Authority did not have regard to that information. The appellant did not do this: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67] and SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25].

44    First, it is apparent from the earlier discussion in these reasons that the Authority had regard to the February 2017 Submissions. As indicated earlier, the item of information to which the appellant referred was contained in [20] of those submissions. Secondly, the Authority evidently had regard to the country information before the delegate. This included the 2016 UK Home Office Report, [2.3.4] of which set out the identified information.

45    As noted at [8] above, [2.3.4] of the 2016 UK Home Office Report was cited in support of the delegate’s finding that “[t]he UK Upper Tribunal (Immigration and Asylum Chamber) in 2013 concluded that the LTTE in Sri Lanka itself is a ‘spent force’ and there have been no terrorist incidents since the end of the civil war”. Also, as noted above, the delegate referred to the 2016 UK Home Office Report in other contexts. Significantly too, the Authority, at [34] of its reasons, relied on the 2016 UK Home Office Report in concluding that “country information before the delegate overall indicates the situation for Tamils has improved”: see [17] above. The quotation from that Report, which is relied on to support this statement is located at [2.3.1], which, like [2.3.4], is in the same part of that Report. This part is identified as “2.3 Assessment of risk”. As counsel for the Minister noted, [2.3.1] made it clear that merely being a Tamil person was not enough to give rise to a well-founded fear of persecution, and that attention had to be given to the situation of a person under the current rather than the previous government of Sri Lanka.

46    The Authority also relied on the 2016 UK Home Office Report elsewhere in its reasons, to indicate that it was important to have regard to contemporary circumstances in Sri Lanka. In [33] of its reasons, for example, the Authority relied on [6.9.1] of the 2016 UK Home Office Report, in connection with its finding that “the Siresena government had de-proscribed a number of Tamil organisations”.

47    It is evident that the 2016 UK Home Office Report set out at [2.3.4] the information identified and relied on by the appellant in his Notice of Appeal. It may reasonably be inferred from the Authority’s reasons that it read and considered the whole of that Report and, in particular, had regard to that part of that Report headed “2.3 Assessment of risk”. It specifically mentioned [2.3.1]. The fact that it did not specifically refer to [2.3.4] just a little further on in the same part of the Report does not support the inference the appellant would have the Court draw.

48    The appellant relied on MZYTS in support of his argument that the Authority failed to consider the information identified in his Notice of Appeal. In that case, the question was whether the Tribunal had identified all the material questions of fact necessary for it to address the visa applicant’s claim. The Tribunal failed to consider an essential integer of the claim, “evidence of which was led to consolidate [the] claim and contradict information raised by the Tribunal at the hearing”. As the Full Court said in that case, at [52], “[i]n the particular circumstances of [the] claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected”.

49    This was not, however, simply a case of contradictory information, as the appellant put it. The Authority’s own references to the 2016 UK Home Office Report made it clear that the issue of risk fell to be assessed by reference to the then current government, not a past government. The UK Upper Tribunal Decision was published three years before. The DFAT Country Information Report on Sri Lanka, on the other hand, was dated 24 January 2017: it was the most contemporaneous report at the time of the Authority’s review. If the Authority were to act in conformity with the 2016 UK Home Office Report, then it had to have particular regard to current circumstances, rather than what had happened to failed Tamil asylum seekers returning to Sri Lanka after departing the country illegally at an earlier time under a previous government. This case is clearly distinguishable from MZYTS.

50    In the circumstances of this case, having regard to the material before the reviewing court, it could not reasonably be inferred from the fact that the Authority did not specifically mention the information identified in the appellant’s Notice of Appeal that the Authority did not have regard to that information.

51    It is unnecessary to consider the appellant’s argument that the failure to consider the identified information was a material error. The appellant has not established that there was any such failure.

disposition

52    For the reasons stated, this appeal should be dismissed with costs.

Associate:

Dated:    13 May 2022