Federal Court of Australia

AOU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1095

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

GOODMAN J

introduction

1    The appellant is a citizen of Sri Lanka who arrived in Australia on 1 May 2013 as an unauthorised maritime arrival and who, on 22 September 2016, lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa.

2    On 14 June 2017, following an interview with the appellant on 22 February 2017, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a decision under s 65 of the Migration Act 1958 (Cth) to refuse to grant the appellant a visa. On 19 June 2017, that decision was referred to the Immigration Assessment Authority for review. On 11 January 2018, the Authority affirmed the delegate’s decision and published its Reasons for doing so. On 8 February 2018, the appellant filed an application for judicial review with the (then) Federal Circuit Court of Australia. That application was amended on 1 October 2019.

3    On 22 October 2019, the primary judge heard the amended application for judicial review and on 31 October 2019, she dismissed it with costs: AOU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3118 (J).

4    The appellant appeals to this Court from the decision of the primary judge.

BACKGROUND

The appellant’s claims for protection

5    The appellant’s claims for protection were set out by the primary judge at J[25] as follows:

(a)    The applicant’s family were regarded as an LTTE family in the area where they were living.

(b)    In about 2007 the applicant’s older sister joined the LTTE and became quite involved. She later disappeared and was presumed to have been killed.

(c)    The applicant’s older brother was taken forcibly by the LTTE around the beginning of 2009 but did not want to fight and returned home after four months.

(d)    The applicant’s father supported the LTTE and helped them by delivering food and transporting injured LTTE people.

(e)    The applicant’s father and another sister were killed by a bomb blast in May 2009. The attack was reported by Channel 4 in the UK, a video of the attack appeared on YouTube, in which his father and sister are mentioned by name, and the applicant thinks that his aunt in Norway has publicised the deaths online. There was pressure on the Sri Lankan government resulting from the deaths of civilians, and his family has been told by Sri Lankan authorities to say that his father and sister were killed in an LTTE attack. The applicant fears harm by the authorities in order to enforce his compliance or his silence.

(f)    After the conflict the applicant’s family home went from being surrounded by the LTTE to being surrounded by Sri Lankan Army camps. His family was harassed because of its association with the LTTE. His brother was interrogated by the CID and told not to leave his house or the applicant would be shot. Despite this the applicant’s brother felt that he had no option but to try to leave Sri Lanka.

(g)    During this period the applicant and his family received constant threats from the Sri Lankan authorities in the army camps surrounding their home. Every time there was an incident the army would come to harass them. The situation became so bad that he felt that he had no choice but to leave Sri Lanka. Both his brothers have since left.

(h)    The applicant’s mother continues to be harassed and threatened that if her children returned to Sri Lanka they would be kidnapped from the airport and shot. The applicant has also spoken to his mother since he has been in Australia and had been told that his brother had been tortured by the CID by having his fingernails plucked at and having pins poked through his nails. The man next to him had been shot and he was told that he would be next.

(i)    In addition to the applicant’s fears relating to the deaths of his father and sister, he fears being interrogated and tortured to reveal information about the LTTE.

The Authority’s task and decision

The task

6    The task undertaken by the Authority was to review the decision referred to it and to affirm that decision or remit it for further consideration: s 473CC of the Act. In doing so, it had before it the information provided to it under s 473CB of the Act. It was also able to consider new information that was not before the Minister when the Minister made the decision under s 65 of the Act and which it considered may be relevant: s 473DC. However, the Authority was forbidden from considering any new information unless the requirements of s 473DD of the Act had been satisfied.

7    The decision under review was a decision of the Minister under s 65 of the Act to refuse to grant the visa sought by the appellant. Part of that decision (and thus part of the review) was whether the criteria for the grant of a protection visa under s 36 of the Act had been satisfied and in particular s 36(2)(a) and (aa) which provided:

36 Protection visas – criteria provided for by this Act

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

The decision

8    The Authority described at paragraphs [5] to [14] of its Reasons, the information before it including information provided after the delegate’s decision (some of which it accepted as new information within the meaning of s 473DC of the Act). It then summarised the appellant’s claims for protection (Reasons [15]).

9    At the commencement of its analysis of the information before it, the Authority stated at paragraph [16] of its Reasons:

Much of the applicant’s account of his circumstances has been presented consistently and is also broadly consistent with country information. I accept that his family was displaced from their home in Kilinochchi, which was under LTTE control until the final months of the war. I accept that in the final stage of the war his father and two sisters were killed near Mullaivaikkal. I accept that after the war ended the surviving family members were screened at the Omanthai army checkpoint and sent to a displaced persons camp where the applicant’s brother underwent further questioning about links to the LTTE. After some months in two different IDP camps the family was allowed to return home where I accept they continued to be visited, monitored and questioned by the army. The country information indicates that this type of interaction with the authorities after the end of the war was routine for the Tamil population in areas formerly under the control of the LTTE and that arbitrary arrests, detentions, intimidation and physical mistreatment was often involved. Against this background, I accept that the applicant’s older brother was detained on several occasions and tortured; I also accept that the applicant was questioned once for two hours at a nearby military camp in February 2013. The applicant’s evidence as to his treatment during this detention appears inconsistent. At the entry interview he said that he was beaten and tortured. In the written claims provided with his SHEV application he did not mention the detention at all, or claim to have been mistreated at any time by security forces. In the SHEV interview he referred to having been questioned rather than detained - although he said he was taken to the army camp for two hours - and did not mention being assaulted or tortured. I am prepared to accept that the applicant was assaulted during this detention.

10    The Authority then noted that country information indicated that the focus of the authorities was on those who may pose a “current” threat and that monitoring of Tamils had decreased. The Authority observed that high level former Liberation Tigers of Tamil Eelam (LTTE) members and their families as well as former combatants who were involved in crimes and violence may still be of interest (Reasons [17]). The Authority then referred to the most recent United Nations High Commissioner for Refugees Guidelines which advised that the need for protection depended on whether the individual was a former combatant, a person involved in the LTTE’s civilian administration or provided material assistance to the LTTE such as transporting supplies and personnel; and their close family members (Reasons [18]).

11    The Authority noted that the appellant had consistently claimed that his sister N was an LTTE combatant but that there were discrepancies in his various accounts of her last months (Reasons [20]). The Authority was inclined to consider that N had died with her father and sister as the War Without Witnesses report (WWW report) and death certificates had seemed to indicate. However, it was willing to accept that she was an LTTE combatant (Reasons [21]). Similarly, the Authority considered the appellant’s claim that his older brother was forcibly recruited by the LTTE before he managed to escape and that his father provided assistance to the LTTE was plausible and consistent with the country information (Reasons [22]–[23]).

12    At paragraphs [24]-[25] of its Reasons, the Authority stated:

24.    Notwithstanding these family links to the LTTE, I am not satisfied that the applicant was ever of particular adverse interest to the authorities at the end of the war and until his departure from Sri Lanka. The applicant’s evidence is that the surviving family members were screened at Omanthai and sent to an IDP camp, indicating that the older brother was not identified as a combatant. Despite further investigation and screening in the IDP camps, the applicant’s evidence does not suggest that if his siblings’ links to the LTTE were discovered, they were of particular interest to the authorities. His brother was not sent to rehabilitation but was allowed to return home with the other family members when they were released. The applicant said at the SHEV interview that at some stage the authorities found out that his brother had been with the LTTE, but has not specified when this was or how they found out. His written claims indicate that the authorities “told” his brother that he was with the LTTE in an interrogation after the family returned home, and said that he should not leave the house or the country. This might suggest that the authorities were aware at this point of the brother’s involvement with the LTTE. It is difficult to make a firm finding as to whether the authorities were aware that his brother had been a combatant, but given the country information about the level of post-war screening in which the authorities were keen to identify anyone who had any involvement whatsoever with the LTTE during the war, I consider it most likely that the authorities were aware of his brother’s involvement before the applicant’s departure. However, the applicant’s evidence does not suggest that having two siblings who were LTTE combatants resulted in an unusual level of adverse attention prior to his departure, or in harm beyond one brief detention in which he was possibly assaulted. The applicant was able to obtain a passport without difficulty and depart Sri Lanka legally using that passport, indicating that he was not of particular adverse interest to the authorities and certainly was not on any watch or stop list. As noted above, I accept that the family was subject to routine monitoring and investigation after they returned to their home, but in my view the level of attention described by the applicant is equally consistent both with the authorities being aware of the family members’ limited involvement with the LTTE during the war, and with routine monitoring of the Tamil population, and young males in particular, which was in place at that time. I consider that the applicant has sought to exaggerate the level of adverse interest in him and the level of danger he faced prior to his departure. He was unable to remember when he obtained his passport but said that he thought it was in 2012; he has never specified that he obtained his passport in response to the claimed detention in February 2013, and it seems reasonable to expect that if this was the case he would remember and would have said so. At the entry interview he said that he started making arrangements to leave only one week before he left; if true, this would suggest that must have already had a passport. This further tends to suggest that he did not leave as soon as he had the means to do so, and that the decision to leave was not made because of urgent fears for his safety in response to the February 2013 detention.

25.    The applicant also claims that he will be at risk of harm on return because the Sri Lankan authorities will suspect that he has revealed information about the circumstances of the deaths of his father and sisters, exposing the Sri Lankan army as responsible. He said that his family had been warned not to say that the SLA was responsible for the shelling attack which killed his relatives. In the entry interview and in his written claims he said that his aunt, when visiting from Norway, had broadcast this information online; when asked what he meant by this at the SHEV interview, he said that he thought she might have told “Channel 4” how they were killed. In his entry interview he said that what his aunt had done was seen as being “against Sri Lanka”.

13    Turning to the publicity of the deaths of the appellant’s family members, the Authority regarded the information regarding his aunt as too vague and that the incident in any event was public knowledge, having being published in the WWW report (Reasons [26]). The Authority also noted that the UK Home Office in a 2017 report considered that only people who gave evidence to the Reconciliation Commission would be at risk of harm and that the appellant was not a witness to the deaths (Reasons [27]). The Authority accepted that the appellant, as an “irregular returnee”, would be subject to certain routine investigations at the airport and might be identified as a failed asylum seeker (Reasons [28]), but did not consider the appellant as a Tamil returning as a failed asylum seeker would be specifically targeted (Reasons [29]).

14    In that regard, the Authority considered that the appellant’s brother and sister were ordinary fighters who were forcibly recruited and in the case of the appellant’s brother, only served for a very short time. The Authority noted the appellant was not questioned about his father’s involvement, and it would no longer be a concern given his death in 2009 (Reasons [29]). The Authority was not satisfied the authorities would suspect the appellant of LTTE involvement given his age at the time he left Sri Lanka or that he would have any useful information to add (Reasons [29]). The Authority also did not accept that a person with family links to low level LTTE cadres known to the authorities would be charged under the Prevention of Terrorism Act (Sri Lanka) or detained or tortured (Reasons [30]).

15    The Authority then considered s 36(2)(a) of the Act and in particular whether the appellant was a refugee within the meaning of s 5H(1) of the Act, and specifically whether there was a “well-founded fear of persecution” if he were to return to Sri Lanka, within the meaning of ss 5H(1) and 5J of the Act. At paragraphs [34] to [36] of its Reasons, the Authority stated:

34.    Considering the applicant’s circumstances and profile as a whole - accepting his family members’ links to the LTTE and his brother’s possible departure from Sri Lanka while being monitored; his residence in an area formerly under LTTE control; the circumstances of his father’s and sisters’ deaths; the fact that the applicant himself has had no involvement in any activities of which the authorities would be suspicious; and that he will probably be identified as a failed asylum seeker on return to Sri Lanka - I am not satisfied that there is a real chance that the applicant would be at risk of harm on return because of actual or perceived links with the LTTE for any reason arising on the credible evidence before me.

35.    I accept that because of the circumstances in which he will most likely return to Sri Lanka the applicant will undergo some routine investigation at the airport and I accept that he will probably be questioned about his travel to Australia and may be identified as a failed asylum seeker. I am satisfied that the applicant has no identity concerns, or criminal or security records that would raise the suspicion of the authorities during this routine processing. I am satisfied that the applicant is not himself of specific interest to the authorities because of actual or suspected LTTE involvement. While I accept that his brother and sister were ordinary LTTE combatants who were forcibly conscripted, I am satisfied that the authorities were most likely aware of this prior to the applicant’s departure, and that there is no real chance that this would result in serious harm to the applicant on return. The country information indicates that, in the current climate in Sri Lanka, none of the applicant’s personal characteristics or his history, as set out above, including his former place of residence in a LTTE controlled area; his family connections with former combatants and his father’s assistance to the LTTE; because he would be viewed as a potential witness to war crimes or human rights violations relating to the deaths of his father and sisters; because he has spent time outside Sri Lanka in the diaspora; or because he has sought asylum, would result in the applicant being subjected to any investigation beyond the routine inquiries at the airport, and I am not satisfied that there is a real chance that it would result in his being detained and subjected to serious harm.

36.    The applicant does not meet the requirements of the definition of refugee in s.5H(l). The applicant does not meet s.36(2)(a).

16    The Authority then considered whether s 36(2)(aa) of the Act was satisfied and in particular whether there were substantial grounds for believing that as a result of the appellant’s removal to Sri Lanka there would be a real risk that the appellant would suffer significant harm. At paragraphs [38] to [40] of its Reasons, the Authority stated:

38.    Under s.36(2A), a person will suffer ‘significant harm’ if:

•    the person will be arbitrarily deprived of his or her life

•    the death penalty will be carried out on the person

•    the person will be subjected to torture

•    the person will be subjected to cruel or inhuman treatment or punishment, or

•    the person will be subjected to degrading treatment or punishment.

39.    As set out above, I have not accepted that the applicant faces a real chance of serious harm because of his Tamil ethnicity or because of imputed support for the LTTE arising for any reason including his former place of residence; his family connections with former combatants and his father’s assistance to the LTTE; or he would be viewed as a potential witness to war crimes or human rights violations relating to the deaths of his father and sisters; because he has spent time outside Sri Lanka in the diaspora or because he has sought asylum. Based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for these reasons. I have accepted that he may be questioned on return, at the airport and possibly afterwards, but I am not satisfied that this would result in significant harm, including torture or cruel, inhuman or degrading treatment or punishment.

Complementary protection: conclusion

40.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

proceedings in the court below

The ground of review

17    The appellant’s sole ground for judicial review as set out in his Amended Application to the Court below was as follows:

1.    The Authority failed to consider all of the claims made by the Applicant.

Particulars

(a)    The Applicant claimed that his family had been questioned about his whereabouts after he had left Sri Lanka and that his mother had been told that he would be kidnapped from the airport and shot if he returned.

(b)    The Applicant claimed that after the end of the Civil War his brother, whom the Tribunal accepted had been recruited into the LTTE, had been interrogated and tortured by the CID to make him divulge information about the LTTE.

Primary judge’s reasoning - particular (a)

18    The primary judge’s reasoning with respect to particular (a) was set out at J[75] to [81]:

75.    In relation to Ground 1(a), true it is that the applicant stated in his written claims that on one occasion the authorities told his mother that if her children returned to Sri Lanka they would be kidnapped from the airport and shot. However, that claim was premised on the applicant’s family’s links to the LTTE.

76.    The IAA dealt comprehensively with the applicant’s claim of a risk of harm because of his family’s links to the LTTE and ultimately rejected that the applicant was at risk for that reason. The IAA accepted the existence of those connections and considered any risk to the applicant.

77.    However, based on country information before it, the IAA was satisfied that the applicant would not be harmed in Sri Lanka. The IAA found that the Sri Lankan authorities would have no interest in interrogating the applicant on his return in relation to his family’s involvement with the LTTE during the war. The IAA referred specifically to the reasons for that finding being the applicant’s age at the time war ended and its finding that the applicant would not be suspected of having any other link or involvement with the LTTE. The IAA found that, given his age, the applicant would not be regarded as likely to be in possession of any useful information about the LTTE or its members that had not already been provided by the applicant.

78.    The IAA also had regard to the current and relevant country information above and the fact that the applicant was able to obtain a passport and depart Sri Lanka legally, leading the IAA to find that the applicant was not of any adverse interest to the authorities.

79.    I accept the first respondent’s submission that the IAA was not required to make a specific finding on the purported threats received by the applicant’s mother because the factual basis upon which this contention rests had been rejected by the IAA.

80.    The IAA’s findings were open to it on the evidence and material before it, and for the reasons it gave. The IAA’s findings were probative of the issues before the IAA and not tainted by any failure to afford procedural fairness. Nor were the IAA’s findings without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

81.    In the circumstances, none of the IAA’s findings is legally unreasonable. Nor is it a jurisdictional error for the IAA to have failed to have made a specific finding about the applicant’s assertion in his written claims that authorities told his mother that if her children returned to Sri Lanka they would be kidnapped and shot. The IAA’s rejection of that claim is subsumed in the IAA’s finding of greater generality that the applicant was not of interest to the authorities in Sri Lanka nor was he at risk of serious or significant harm if returned to Sri Lanka (see WAEE).

Primary judge’s reasoning - particular (b)

19    The primary judge’s reasoning with respect to particular (b) was set out at J[82] to [85]:

82.    In relation to Ground 1(b), being a contention that the IAA failed to consider the applicant’s claim that his brother was tortured by the Sri Lankan authorities, a fair reading of the IAA’s reasons for decision does not support such a contention.

83.    The IAA made a specific finding that it accepted that the applicant’s older brother was “detained on several occasions and tortured.” However, even in light of that finding, the IAA found that the applicant was not at risk of serious or significant harm in Sri Lanka notwithstanding those connections. The IAA’s findings were largely based on the country information before it which it identified with specificity.

84.    It is well settled that the country information to which the IAA has regard and the weight it gives that information is a matter for the IAA (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

85.    There is no suggestion or contention on the part of the applicant that the country information relied upon was in any way inaccurate, irrelevant or out of date.

NOTICE OF APPEAL

20    The Notice of Appeal to this Court sets out the following grounds of appeal (without alteration):

1.    The Court below erred in finding that the Immigration Assessment Authority (IAA)) had failed to properly consider the Applicant’s claims under s36 (2) (aa) of the Migration Act 1958 ("the Act")

2.    Ground 1

The Authority failed to consider all of the claims made by the Applicant.

Particulars

(a)    The Applicant claimed that his family had been questioned about his whereabouts after he had left Sri Lanka and that his mother had been told that he would be kidnapped from the airport and shot if he returned.

(b)    The Applicant claimed that after the end of the Civil War his brother, whom the Tribunal accepted had been recruited into the LTTE, had been interrogated and tortured by the CID to make him divulge information about the LTTE.

21    There are obvious typing infelicities in the Notice of Appeal. I will treat the first ground of appeal as a complaint that the Court below erred in not finding that the Authority had failed to properly consider the appellant’s claims under s 36(2)(aa) of the Act. I will also treat the reference in the second ground of appeal to “Ground 1” as a reference to “Ground 2”. For convenience, I will refer to Ground 2 as it applies to particulars (a) and (b) as “ground 2(a)” and “ground 2(b)” respectively.

22    It is also necessary to consider a further ground, which has been fairly and properly raised by the Minister. That ground concerns whether the Authority correctly applied s 473DD of the Act in light of the decision of the High Court of Australia in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (a decision subsequent to the decision of the primary judge) in considering the new information. I will refer to this as Ground 3.

consideration

Ground 1

23    Ground one is a complaint that the primary judge erred in not finding that the Authority had failed to properly consider the appellant’s claims under s 36(2)(aa) of the Act. Save to the extent that it relates to the claims particularised as part of the second appeal ground (being the sole ground of review advanced below), the subject matter of the first ground of appeal was not raised before the primary judge. To the extent that the first ground of appeal concerns claims other than those particularised in the second ground of appeal, leave is required: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11]. The Minister opposes leave being granted.

24    The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The predominant consideration is the interests of justice: see Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[37] (Katzmann, Banks-Smith and Rofe JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel, Weinberg and Stone JJ), and Francuziak at [11]. In considering the interests of justice, the merits of the proposed new ground is an important consideration: Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ).

25    The appellant did not identify any other claims that he had made and which the Authority had not considered, or otherwise address the question of leave. In these circumstances, and in circumstances where it is not apparent that the Authority failed to consider any such claims and where the appellant was represented before the primary judge, I am not satisfied that the first ground of appeal – to the extent it is broader than the second ground of appeal – has any merit. Thus, I refuse leave to pursue the first ground of appeal.

Ground 2 generally

26    The second ground of appeal reflects the sole ground of judicial review advanced to the Court below and involves a contention that the Authority failed to consider particular claims made to it by the appellant.

27    The task on a judicial review application is to determine, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute (here, s 473CC of the Act) upon the decision-maker (here, the Authority): MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at 452 [29]-[30] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [27] (Beach, Thawley and Cheeseman JJ). The question whether the Authority’s decision was within the authority conferred upon it by the Act is to be answered by reference to the circumstances extant when the decision was made and events subsequent to the date of the decision are irrelevant: EGZ17 at [28]-[29]. A failure by a decision-maker to consider a claim made to it may amount to a jurisdictional error.

28    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, Kiefel CJ, Keane, Gordon and Steward JJ at 508-510 [24]-[27] explained the approach to be taken in considering whether a decision-maker has properly considered representations made to it:

24.    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25.    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26.    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27.    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(citations omitted)

29    Against that background, I turn now to consider grounds 2(a) and 2(b).

Ground 2(a)

30    The appellant claims that the Authority failed to consider his claim that since his departure from Sri Lanka, his family have been questioned about his whereabouts and that his mother has been told that he would be kidnapped and shot if he returned to Sri Lanka.

31    It was common ground that the appellant had made such a claim to the Authority.

32    The Authority did not expressly refer to this claim in its Reasons. However, it does not necessarily follow from the failure of a decision-maker to expressly refer to a claim made to it, that the decision-maker failed to consider it. This is so where, for instance, it is unnecessary to make a finding on a particular contention because there is a factual premise upon which the contention rests which has been rejected by the decision-maker: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [47] (French, Sackville and Hely JJ).

33    As set out at paragraph [18] above, the primary judge held that:

(1)    the appellant’s claim that on one occasion the authorities told his mother that if her children returned to Sri Lanka they would be kidnapped and shot rested on the premise that the appellant’s family had links to the LTTE (J[75]);

(2)    the Authority, after comprehensively considering the appellant’s claim that he was at risk, ultimately rejected the proposition that he was at risk because of his family’s links to the LTTE (J[76]-[78]); see also the Reasons at [24] and [29]);

(3)    as the premise upon which the contention rests was rejected by the Authority, the Authority was not then required to go on to make a further, specific, finding concerning the purported threats made to the appellant’s mother (J[79]).

34    The appellant did not make any submission as to why this reasoning was erroneous. I discern no error in the primary judge’s reasoning. It follows that appeal ground 2(a) fails.

Ground 2(b)

35    The appellant claims that the Authority failed to consider his claim that after the end of the civil war in Sri Lanka, his brother (whom the Authority had accepted had been recruited into the LTTE), had been interrogated and tortured by the Criminal Investigation Department (CID) to make him divulge information about the LTTE.

36    As set out at paragraph [19] above, the primary judge held that:

(1)    the Authority made a specific finding that the appellant’s older brother had been detained on several occasions at tortured (J[83]; see also the Reasons at [16]);

(2)    nevertheless, the Authority found that the appellant was not at risk of serious or significant harm in Sri Lanka, on the basis (largely) of the country information which it considered in some detail (J[83]; see also the Reasons at [29] to [30] and [35]); and

(3)    the weight to be given to the country information (the veracity of which was not challenged on review) was a matter for the Authority alone (J[84] and [85]).

37    Again, the appellant made no submissions as to why her Honour’s reasoning was erroneous and I discern no error. It follows that appeal ground 2(b) also fails.

Ground 3

38    As previously noted, the Minister identified a further issue on appeal, namely the Authority’s consideration of particular new information under s 473DD of the Act. Section 473DD provided as follows:

For the purposes of making a decision in relation to a fast track reviewable decision, the [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.

39    The proper construction of s 473DD was considered by the High Court in AUS17. Kiefel CJ, Gageler, Keane and Gordon JJ stated at 501-502 [11] to [12]:

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 s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(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.    The result, as has been recognised by the Federal Court in numerous other cases, is that the 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). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

(footnotes omitted)

40    Edelman J, at 504-505 [23] to [25], concurred save that his Honour did not consider such a reasoning procedure was demanded by the logic of s 473DD. In BXT17 v Minister for Home Affairs [2021] FCAFC 9; (2021) 283 FCR 248, the Full Court of this Court (Markovic, O’Callaghan and Anastassiou JJ) explained at 285-286 [137] and [139]:

137.    In AUS17 the plurality of the High Court set out the way in which the Authority should approach the task of assessing new information for the purposes of s 473DD. Namely, that the Authority must assess new information first against the criteria in s 473DD(b)(i) and (ii), unless the new information in question is not capable of such assessment, and then against the criteria in s 473DD(a). If either or both of the criterion in s 473DD(b)(i) or (ii) is satisfied, that is a circumstance to be taken into account in assessing s 473DD(a) of the Act. Contrary to the Minister’s submission, this is more than “guidance” on the process; the plurality mandated the way in which the assessment of new information is to be undertaken pursuant to s 473DD.

…

139.    … While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister’s term, “structure” its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a): see AUS17 at [11].

The new information

41    The new information in question was contained in a letter from the appellant’s solicitor to the Authority dated 10 July 2017:

15.    It is our submission that the Applicant would continue to be politically active or wish to exercise his cultural rights as a Tamil in Sri Lanka, and would likely face significant harm as a result. The Sri Lankan authorities, including the police, Army, the CID, and the Courts, have acted to deny Tamil persons the right to political and cultural expression. We refer the IAA to a recent authority of the Full Federal Court in BBS16 v Minister for Immigration & Anor [2017] FCCA 4 (1 February 2017).

…

18.    The Applicant instructs that he attended Maaveerar Naal events in Australia in 2015 and 2016, and also several Maaveerar Naal and Pongu Tamil events in Kilinochchi, Sri Lanka before the Army took over the area. He has also been to commemorations for the deaths of martyrs high up in the LTTE, such as Thileepan and Annai Poopathy.

19.    We submit that the Applicant’s past involvement in protests and commemorations supports the notion that the Applicant may be inclined to be more politically active if he were able to exercise such rights without fear of significant harm in Sri Lanka.

42    The Authority dealt with this submission at [9] to [11] of the Reasons:

9.    The submission refers to media reports that the Sri Lankan government attempted to prevent Tamils from holding commemoration activities in Mullaivaikkal in May 2017 around the anniversary of the end of the civil war. The media reports, which are dated May 2017 document some threats and harassment of the organisers of the event which ultimately was allowed to proceed. It was submitted that this information shows that the Sri Lankan government is not committed to post-war reconciliation. It contends that the applicant would “continue” to be politically active or would wish to assert his cultural rights as a Tamil in Sri Lanka and that he would likely face harm as a result. It was argued that he would be denied the right to political and cultural expression and that this would amount to significant harm. It was submitted that the applicant has attended “Maaveerar Naal” events in Australia in 2015 and 2016 and also similar events in Kilinochchi before the Sri Lankan army took over the area. He has attended commemorations for the deaths of high ranking LTTE martyrs, but the submission does not state when or where.

10.    Although the submission post-dates the delegate’s decision, it refers to events in Sri Lanka which pre-dated it by at least one month. The applicant has not satisfied me that the information about these events could not have been provided to the delegate before the decision was made. Nor am I satisfied that there are exceptional circumstances which justify consideration of the information. I am not satisfied that the fact that no notice of a forthcoming decision is given, or that the information was provided as soon as it was obtained by the representative constitute exceptional circumstances. I am not satisfied that the reports are helpful in assessing the risk of serious harm faced by the applicant on return to Sri Lanka, even if I were to accept that he would wish to participate in such events on return, because it does not appear from the reports that the harassment of the organisers of the Mullaivaikkal events amounted to serious or significant harm, the events were allowed to proceed despite the initial attempts to prevent this, and there is no suggestion that ordinary participants were harmed. The applicant’s representative has further submitted that the government’s attempts to suppress these events show that Sri Lanka’s reconciliation efforts are “completely lacking” and that there are “significant efforts to curtail fundamental freedoms of political and cultural expression for Tamil people”. However, I am not satisfied that these particular reports about one event in one year provide substantial support for these contentions, and note that there was other information before the delegate which deals more comprehensively with the issue. Overall I am not satisfied that there are exceptional circumstances to justify considering the media reports or the submissions about them.

11.    It is contended that the applicant would wish to attend similar events in Sri Lanka because he has attended similar events in Australia. This is also new information which was not before the delegate. As noted above, the applicant claims to have attended Tamil cultural and political events in Australia in 2015 and 2016, similar events in Sri Lanka, and some events for which neither the time nor place is specified. The applicant has not satisfied me that the information about his claimed participation in these events, some of which clearly occurred long before the SHEV application, could not have been given to the delegate before the decision was made. As the applicant’s claims are centred on his imputed profile as a supporter of the LTTE and given that he was represented in relation to his application, I consider that the potential relevance of his attendance at pro-LTTE events would have been known, even before the media reports about the May 2017 Mullaivaikkal commemoration, and could have been provided to the delegate before the decision was made. In any case, the information now provided contains little detail as to the applicant’s claimed participation in Tamil political and cultural events and is therefore of limited assistance. Overall, I am not satisfied that there are exceptional circumstances to justify considering the information.

(emphasis added)

The Authority’s treatment of the new information

43    The Authority clearly considered whether it was satisfied that the new information was not and could not have been provided to the Minister before the decision was made: see Reasons [11]. The Authority also considered whether it was satisfied that there were exceptional circumstances to justify consideration of the new information, as is required by s 473DD(a): see Reasons [11].

44    The issue for determination is whether, prior to considering whether there were such exceptional circumstances, the Authority considered whether the new information was credible personal information which was not previously known and had it been known, may have affected the consideration of the appellant’s claims, as is required by 473DD(b)(ii).

45    The Minister accepts that the new claim was clearly personal information and could be considered as credible and thus that consideration of s 473DD(b)(ii) would be required before any assessment by reference to s 473DD(a) was undertaken. The Minister also accepts that there was no express consideration of s 473DD(b)(ii) in relation to this claim.

46    In my view, paragraph [11] of the Reasons shows that the Authority did apply s 473DD in the manner explained in AUS17 and BXT17. After identifying the new information, the Authority indicated its lack of satisfaction that the new information could not have been provided to the delegate before the decision was made. This is a clear reference to the criterion in s 473DD(b)(i).

47    The Authority then stated: “In any case, the information now provided contains little detail as to the [appellant’s] claimed participation in Tamil political and cultural events and therefore is of little assistance”. Whilst this sentence does not, in terms, refer to the criterion in s 473DD(b)(ii) it is clear that it was directed at that criterion. Even assuming favourably to the appellant that the new information was credible personal information, information which is not detailed and which is therefore of little assistance is information which, had it been known could not have affected the consideration of the appellant’s claims.

48    This conclusion is reinforced when regard is had to the position of the above-quoted sentence within paragraph [11] of the Reasons. It follows consideration of the criterion in s 473DD(b)(i) and precedes consideration of the criterion in s 473DD(a) in the final sentence of paragraph [11]: “Overall I am not satisfied that there are exceptional circumstances to justify considering the information”.

49    Thus, the Authority applied s 473DD in the manner explained in AUS17 and BXT17 and did not err.

50    I note, for completeness, that whilst the Authority did not expressly refer to the statutory language used in s 473DD(b)(ii), this is not necessary. As Markovic J stated in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]:

… [N]otwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).

51    To similar effect, see: CPP17 v Minister for Immigration and Border Protection (No 2) [2021] FCA 199 at [112] (Besanko J); FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [68] (Kenny J); DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 675 at [27]–[28] (Middleton J) and DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106 at [46]–[50] (Middleton J).

Other matters raised by the appellant

52    At the hearing, the appellant made oral submissions setting out various bases upon which he says he has a fear of returning to Sri Lanka due to recent events which have occurred in that country. However, events subsequent to the Authority’s decision are not relevant to judicial review of that decision: EGZ17 at [28]-[29].

53    The appellant also submitted to the extent that the Authority did not accept his evidence concerning his fear of returning to Sri Lanka, that this demonstrated error on the part of the Authority. That submission invites merits review, which is beyond the jurisdiction of this Court and the Court below on a judicial review, such jurisdiction being confined to deciding whether the Authority’s decision was made lawfully under the Act. Mere disagreement with the reasons of the Authority is not a basis for invalidating the decision: AZK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 331 at [34] (Perry J).

conclusion

54    The appeal should be dismissed, with costs. I will make orders accordingly.

Associate:

Dated:    16 September 2022