Federal Court of Australia

ASO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1141

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or taxed.

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 9 September 2012 as an unauthorised maritime arrival. On 7 March 2016, he applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa.

2    On 4 October 2016, a delegate of the first respondent (Minister) made a decision under s 65 of the Migration Act 1958 (Cth) to refuse to grant the appellant a visa. On 10 October 2016, that decision was referred to the Immigration Assessment Authority for review and on the same day, the Authority wrote to the appellant acknowledging the referral and providing the appellant with information, including the “Practice Direction for Applicants, Representatives and Authorised Recipients”.

3    On 24 January 2017, the Authority affirmed the delegate’s decision and provided its Reasons for doing so.

4    On 21 February 2017, the appellant filed an application for judicial review with the (then) Federal Circuit Court of Australia. On 13 March 2020, the primary judge made orders dismissing that application: ASO17 v Minister for Immigration and Border Protection [2020] FCCA 567 (J). On 31 March 2020, the appellant appealed to this Court from the decision of the primary judge.

5    During the course of the hearing, the appellant sought an adjournment of the hearing to allow him the opportunity to obtain legal representation. For the reasons set out below, the application for an adjournment and the appeal are each dismissed.

THE APPELLANT’S CLAIMS FOR PROTECTION

6    The primary judge described the appellant’s claims for protection at J[10]:

10.    The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record as follows:

a.    during his childhood the applicant and his family were displaced by the Sri Lankan civil war and spent half a year in an army camp. During this time, his father received a bullet wound and he received a speech impediment as a result of nerve gas;

b.    in 2006 X, the applicant’s brother, became a member of the LTTE navy. At the conclusion of the civil war the Sri Lankan Army (“SLA”) detained and tortured X in a prison camp for eight months and then the Criminal Investigations Department (“CID”) took him to Colombo where he was beaten and tortured;

c.    X was freed in May 2010. The applicant supplied documents pertaining to X’s release. However, these documents stated that X was released from a temporary camp and rehabilitated at that camp’s rehabilitation centre as opposed to from a prison camp as originally claimed by the applicant. Upon release, X was required to report fortnightly to the police station and was constantly harassed by the CID. On multiple occasions X was kidnapped, tortured, beat and detained and was once shot in the leg while trying to escape;

d.    the applicant elaborated on these events during his departmental interview. He said that another group who he could not name had also abducted X. When asked where the CID took X, the applicant vaguely said that he had been taken to “where the arms are buried” and then named two locations. The applicant told the delegate that X refused to join the CID. He told the delegate that X had told him this. One time X was detained for four days, beaten and shot upon trying to escape. The applicant said that after this incident their father took X directly to Colombo to escape to India as otherwise the CID would have searched for him;

e.    X attempted to escape for India in October 2010 but the agent informed the applicant’s family that he saw him being covered by a cloth and taken by the CID into a room at the airport and then taken from the airport. X has not been found;

f.    the applicant came to the CID’s attention after X failed to report to the police station. The Jaffna CID did not believe that X had been taken by the Colombo CID at the airport;

g.    in November 2010 the applicant was detained, beaten and asked for information about his brother. During his departmental interview the applicant claimed that thereafter this continued approximately one to three times each month and the CID took him to a CID camp;

h.    in February 2011, after the CID threatened to permanently detain him, his family helped him leave Sri Lanka. The CID harassed his father for three months after he left. The IAA noted inconsistencies between the applicant’s written claims and those made before the delegate during the interview;

i.    in the applicant’s written claims the applicant said his father was harassed by the CID for three months but during the interview said this occurred for two years. When asked by the delegate about the inconsistency, the applicant said:

•    ...his father supressed the information and told him it was only three months whereas his mother said it was 2 years and that was correct.

adjournment application

7    During the hearing, the appellant sought an adjournment so that he could obtain legal representation. The principles relevant to such an application were summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute ‘right’ to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

8    I refuse to grant the adjournment for the following reasons. First, the appellant has had ample time in which to arrange legal representation. The primary judgment was delivered on 13 March 2020 and the Notice of Appeal was filed on 31 March 2020. On 5 July 2022, the parties were notified that the hearing was scheduled for 13 September 2022. The appellant submitted that the COVID-19 pandemic has left him unable to obtain legal representation. I do not accept that submission. Whilst there may have been some difficulties in doing so during periods of “shutdown”, there has been ample time when the “shutdowns” were not operative. The appellant did not submit (or provide any evidence) that he had been ill for an extended period during the pandemic, rather his submission was pitched at a general level. Secondly, there is no evidence of any attempts to obtain legal representation or as to why those who represented him before the primary judge no longer did so. Thirdly, the application for an adjournment was not made until the hearing of the appeal, at a time when the Minister was in a position to proceed and the resources of the Court and an interpreter had been deployed toward the hearing of the appellant’s appeal. At that time, it was too late for such resources to have been re-deployed to the hearing of cases of other litigants in the Court: see WZAVK at [15]; FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1525 at [12] (Jackson J).

consideration of the appeal

The Authority’s decision

9    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. The decision under review was the 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

10    In undertaking that task, the Authority had regard to the information referred to it by the Secretary pursuant to s 473CB of the Act. No other material was obtained or received by the Authority (Reasons [3]).

11    At the start of its reasoning, the Authority set out a summary of the appellant’s claims (Reasons [4]). It then turned to consider 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”.

12    The appellant started its consideration of that issue by noting its acceptance of the appellant’s claim that he was a Tamil Christian from the Jaffna district of Sri Lanka in the Northern Province (Reasons [7]).The Authority then indicated that it had significant concerns about the appellant’s credibility. The Authority explained that although it was mindful of the difficulties faced by the appellant in effectively putting forward his claims, including a language barrier and his limited education, it had formed the view that the appellant had been untruthful in regard to key aspects of his claims (Reasons [8]).

13    The Authority accepted as plausible the appellant’s claim that his father had been wounded by a bullet and that the appellant had been affected by a gas attack, which resulted in a stammer. It also accepted that the appellant and his family spent over six months in Chettikulam Army camp, Vavuniya, until about March 2010 (Reasons [9] to [10]).

14    The Authority accepted that the appellant’s brother (N) was a member of the Liberation Tigers of Tamil Eelam (LTTE), but considered that the appellant had exaggerated N’s experiences in order to enhance his own profile (Reasons [12]). The Authority observed that the evidence the appellant gave in his interview about N, and himself, was quite different to that given in his written application, and also an earlier, invalid, visa application that he had lodged (Reasons [19]). The Authority regarded these changes as significant and formed the view that the appellant had not been truthful in the visa application process, and that he had significantly embellished his claims that N was a person of interest to the CID, and the appellant was of interest to the CID because of N’s adverse profile (Reasons [22]).

15    The Authority thus did not accept that N had been detained, beaten and tortured by the CID for four months after his release from rehabilitation, or that he was harassed and kidnapped by the CID after his release (Reasons [23]). The Authority accepted that N was required to report fortnightly to the local police after his release, but found that this was routine and the security forces had no interest in him until he failed to report to them (Reasons [23]). The Authority accepted that N was booked to fly to India, but did not accept that he was taken by the CID at the airport (Reasons [24], [26]). The Authority accepted as plausible that, after N had failed to report, the authorities came looking for N and threatened the appellant, and that he was beaten on one occasion when they were looking for information. However, the Authority did not accept that this happened more than once and the Authority found it unlikely that this would have ongoing repercussions for the appellant (Reasons [25]). The Authority was not satisfied that when the appellant left Sri Lanka he was a person of interest, or that there was a real chance that he would suffer serious harm because N was a member of the LTTE (Reasons [28]).

16    The Authority accepted that the appellant may be subject to monitoring on his return to Sri Lanka because N was in the LTTE, but did not accept that this amounted to a risk of serious harm, and did not accept that the authorities otherwise have any ongoing interest in the appellant (Reasons [34]). The Authority also did not accept that the appellant otherwise faced any real chance of harm on the basis of his ethnicity, origin from the Northern Province, or his imputed political opinion (Reasons [34]).

17    The Authority found that the appellant departed Sri Lanka lawfully, but would be identified on return as a failed asylum seeker (Reasons [35]). The Authority accepted that there were instances of returnees facing arrest or detention, but noted recent country information that monitoring and fears of mistreatment had reduced under the (then) current government and that the risk of harm for the majority of returnees was low (Reasons [36] to [38]).

18    The Authority accepted that there was some risk of detention or harm if a returnee had an adverse profile (Reasons [39]). However, the Authority was satisfied that there was only a remote chance that the appellant would suffer adverse treatment, either immediately upon his arrival or following his return to Sri Lanka (Reasons [40]). The Authority was not satisfied that the appellant faced a real chance of serious harm on return to his home area for any reason, including his familial connections, his ethnicity, his status as a failed asylum seeker, or his political opinions (Reasons [42]). The Authority was also not satisfied, considering the appellant’s claims cumulatively, that he faced a real chance of harm (Reasons [43]) and concluded that he was not a refugee within the meaning of s 5H(1) of the Act (Reasons [44]).

19    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 his removal to Sri Lanka there would be a real risk that the appellant would suffer significant harm. For substantially the same reasons as set out above with respect to its consideration of s 36(2)(a), the Authority was not satisfied that there was a real risk that the appellant would suffer significant harm (Reasons [45] to [50]).

The proceeding before the primary judge

20    The appellant advanced two grounds of review before the primary judge.

First ground of review

21    The first ground of review was:

1.    The Authority denied procedural fairness to the Applicant.

Particulars

The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions. In relying on that Practice Direction the Tribunal denied the Applicant an opportunity to make proper submissions in support of the review.

22    The primary judge dismissed this ground of review. At J[21], his Honour noted:

The applicant conceded that this ground must fail because the Court is bound by the decision of the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551. It was held in that case that the IAA’s practice note, to the extent that it sought to limit the length of written submissions, did not represent an invalid exercise of power. The applicant formally submitted that that case was wrongly decided.

Second ground of review

23    The second ground of review advanced by the appellant to the primary judge was:

2.    The Authority failed to take into account an essential element of the Applicant's claims.

Particulars

(a)    The Applicant had claimed to the delegate that he had lived in an area known as Vanni which was a stronghold of the Liberation Tigers of Tamil Eelam (LTTE) (CB 154 and 174).

(b)    The Applicant had claimed to, supported by evidence, that there was an extensive network of Tamil informers watching for people coming home, especially in the Vanni, and that intelligence services would likely watch someone for a few days on return to the country before picking them up, so that clearing the airport was no guarantee of future safety (CB 176).

(c)    The Authority made no mention of the claim with respect to the Applicant's connection with the Vanni area, and the Court should infer that it did not take it into account.

24    The primary judge also dismissed this ground. His Honour’s reasoning was set out at J[22] to [28]:

22.    If the IAA failed to consider a clearly articulated claim made by the applicant or an integer of such a claim then a constructive failure to exercise jurisdiction would be the result.

23.    In their 3 August 2016 submission to the delegate, the applicant’s representatives submitted that the applicant had:

… lived in Vanni, an area identified as a stronghold of the LTTE.

They went on to submit that the International Truth & Justice Project had warned Tamils who had left Sri Lanka

… that Tamils who return to Sri Lanka from abroad are under surveillance and there is still an extensive network of Tamil informers watching for people returning home, especially in the Vanni. The intelligence services will likely watch someone for a few days on return to the country before picking them up, so clearing the airport is no guarantee of future safety.

24.    In his address to the Court, the applicant argued that the IAA made no reference to those submissions and although it did refer to the “Northern Province”, it did not indicate that the Vanni lay within that province. He argued that the IAA had ignored this aspect of his claims and it could not be said that, if it had not done so, the result of the review would have been the same. He argued that the IAA’s decision was affected by jurisdictional error as a result.

25.    At the outset, it should be noted, no evidence such as a map or an atlas being adduced in this proceeding, that the applicant did not contend that the Vanni was not in the Northern Province of Sri Lanka. This is significant because its location in that province was inherent in the submissions that the applicant’s representatives made to the delegate. The first above-cited portion of the 3 August 2016 submissions to the delegate, more fully quoted said:

1.    CONVENTION NEXUS

We submit that cumulatively, the essential and significant reasons for [the applicant’s] fear of persecution is because of his:

•    Race

o    The Sri Lankan authorities will persecute [the applicant] because he is a Tamil from the Northern Province of Sri Lanka.

Imputed Political Opinion

o    [The applicant] will be perceived by the Sri Lankan authorities to be an ex LTTE member and/or a person associated or linked to LTTE members and LTTE activities and/or a supporter of the LTTE for reasons including that:

•    [The applicant] has lived in Vanni, an area identified as a stronghold of the LTTE.

Later, the submission stated:

… reports suggest that the government continues to maintain that an LTTE revival is a threat and that the government intends to continue close monitoring of Tamils in the North and East into the foreseeable future. We submit that this renewed climate of fear and suspicion of Tamils amongst the Sri Lankan military means that factors such as having resided in the North, in particular the Vanni and [the applicant’s] brother being a former Sea Tiger who is missing will enhance [the applicant’s] chances of being drawn to the adverse attention of authorities if returned to Sri Lanka.

…

We submit that based on the above information of the treatment of persons with perceived links to the LTTE, [the applicant] will not be safe from the clutches of the authorities if he returns home to the Northern Province or to any other part of the country. …

26.    In the circumstances, read fairly, where the IAA’s reasons refer to the “Northern Province” that should be understood to include the area known as the Vanni because that is how the applicant’s representatives characterised it in their submissions to the delegate and no subsequent submissions were made to the IAA.

27.    At para.7 of its reasons the IAA accepted that the applicant came from the Jaffna district in the Northern Province of Sri Lanka. At para.32 it noted that in the United Nations High Commissioner for Refugees (“UNHCR”)’s 2012 Guidelines:

… in UNHCR’s opinion originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

After discussing the impact that his brother’s involvement in the LTTE might have on the applicant, the IAA went on to conclude in para.34 of its reasons that although the applicant might be subject to monitoring because his brother had been in the LTTE, it was not satisfied that he faced a real risk of serious harm on the basis of, amongst other things, his origin from the Northern Province.

28.    I conclude that in this finding the IAA dealt with the submission referred to in the amended application. The fact that the IAA referred to the Northern Province generally rather than to the Vanni specifically is of no significance, given the way the applicant’s application had been presented to the delegate. This is a case of a finding on a particular matter being subsumed in a finding of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [47].

(emphases added by the primary judge)

The appeal to this Court

25    The grounds of appeal to this Court as set out in the Notice of Appeal are reproduced below (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) (a) and s 36 (2) (aa) of the Migration Act 1958 (“the Act”)

2.    The Authority denied procedural fairness to the Applicant.

Particulars

The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions. In relying on that Practice Direction, the Tribunal denied the Applicant an opportunity to make proper .submissions in support of the review.

3.    The Authority failed to take into account an essential element of the Applicant's claims.

Particulars

(a)     The Applicant had claimed to the delegate that he had lived in an area known as Vanni which was a stronghold of the Liberation Tigers of Tamil Eelam (LTTE) (CB 154 and 174).

(b)    The Applicant had claimed to, supported by evidence, that there was an extensive network of Tamil informers watching for people coming home, especially in the Vanni, and that intelligence services would likely watch someone for a few days on return to the country before picking them up, so that clearing the airport was no guarantee of future safety (CB 176).

(c)    The Authority made no mention of the claim with respect to the Applicant's connection with the Vanni area, and the Court should infer that it did not take it into account.

26    There appears to have been an error in the formulation of the first ground. I will treat that ground 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)(a) and (aa) of the Act.

Ground 1

27    The essence of the first ground of appeal is that the Authority failed to properly consider the appellant’s claims under s 36(2)(a) and (aa) of the Act. By this ground, the appellant seeks to raise, as a ground of appeal, alleged errors by the Authority that were not the subject of the application for review before the primary judge, at least to the extent that the claims which it is alleged the Authority failed to consider go beyond those in the second ground of review before the primary judge (see [23] above). This cannot occur without a grant of leave by the Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11]. The Minister opposes leave being granted.

28    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. As the Full Court (Katzmann, Banks-Smith and Rofe JJ) explained in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[37], the predominant consideration is the interests of justice: see also 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 grounds are 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)), as is the adequacy of any explanation for the ground not having been raised below (VUAX at [48]). As the Full Court in VUAX explained at [48], where there is no adequate explanation for the failure to take the point before the primary judge, and the point seems to be of doubtful merit, leave should generally be refused.

29    I am not satisfied that this ground has any merit for the following reasons. First, it is a general assertion of a failure to properly consider the claims made by the appellant to the Authority. The appellant did not identify other claims that he had made and which the Authority had not considered or otherwise address the question of leave. Secondly, it is not apparent that the Authority failed to consider any such claims. Further, no explanation has been provided for the failure to raise this ground as a ground of review before the primary judge. Thus, I refuse leave to pursue the first ground of appeal.

Ground 2

30    The essence of the second ground of appeal – which repeats the first ground of review advanced before the primary judge – is that the Authority denied procedural fairness to the appellant because it relied upon a direction which it made beyond the power in s 473FB of the Act, namely the Practice Direction, the effect of which was to limit the length of submissions able to be filed by or on behalf of an applicant to five pages, thereby denying the appellant an opportunity to make proper submissions to the Authority. The Practice Direction provided in so far as is presently relevant:

Submissions and new information

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

31    A challenge to the validity of the Practice Direction was rejected by the Full Court (Reeves, Robertson and Rangiah JJ) in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at 570-573 [79] to [107]. I respectfully adopt the following summary of DGZ16 provided by O’Bryan J in ANS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 559 at [30]:

In DGZ16, the Full Court considered the same passage of the Practice Direction that is in issue in this case, and held that it was not inconsistent with the Act or an unreasonable exercise of the power conferred by s 473FB (at [107]). The Full Court found that:

(a)    on the terms of the Practice Direction, the five page limit was only applicable to submissions concerning the Minister’s reasons for decision, and the five page limit did not apply to the provision of new information to the Authority or the explanation for the provision of new information for the purposes of s 473DD (at [99]-[100]);

(b)    the Practice Direction did not say that the Authority would not consider submissions longer than five pages (although the Practice Direction indicated that the Authority may send them back, implicitly, unread), and in a particular case an applicant may request the Authority that he or she may provide a written submission which is longer than five pages (at [101]-[102]);

(c)    the Practice Direction does not directly inhibit the ability of an applicant to address the issues in his or her case, as the submission is intended to be directed to why the applicant disagrees with the decision of the Department or any claim or matter the applicant presented to the Department that was overlooked (at [104]); and

(d)    the evident or intelligible justification for the submissions being no longer than five pages is to encourage, legitimately, submissions that are concise (at [106]).

32    The decision of the Full Court in DGZ16 provides a sufficient reason to dismiss the second ground of appeal. For completeness, I note that there is no evidence that the operation of the Practice Direction denied procedural fairness to the appellant in any practical sense. There is no evidence that the appellant provided any submissions at all to the Authority, or that he would have provided particular submissions but for the Practice Direction. Thus, the second ground of appeal fails.

Ground 3

33    The essence of the third ground of appeal – which mirrors the second ground of review before the primary judge – is that the Authority failed to take into account an essential element of the appellant’s claims, being the matters particularised, namely:

(a)    The Applicant had claimed to the delegate that he had lived in an area known as Vanni which was a stronghold of the Liberation Tigers of Tamil Eelam

(b)    The Applicant had claimed to, supported by evidence, that there was an extensive network of Tamil informers watching for people coming home, especially in the Vanni, and that intelligence services would likely watch someone for a few days on return to the country before picking them up, so that clearing the airport was no guarantee of future safety

(c)    The Authority made no mention of the claim with respect to the Applicant's connection with the Vanni area, and the Court should infer that it did not take it into account.

34    The Authority does not expressly refer, in its Reasons, to the appellant having lived in Vanni or having a connection with the Vanni area. However, it does not necessarily follow from the failure of a decision-maker to expressly refer to a matter, that the decision-maker failed to consider that matter. This is so where, for instance, it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: 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).

35    The primary judge held that:

(1)    the submission made on behalf of the appellant to the delegate (and which was before the Authority) referred to risks posed to the appellant because he was “from the Northern Province of Sri Lanka” or “the North, in particular the Vanni” (J[25]);

(2)    the appellant did not contend that Vanni was not part of the Northern Province of Sri Lanka (J[25]);

(3)    in circumstances where the submission made on behalf of the appellant was framed in this way, the references in the Reasons to the “Northern Province” should be understood to include Vanni (J[26]);

(4)    the Authority accepted that the appellant originated from the Northern Province of Sri Lanka but was not satisfied that this gave rise to a real risk to the appellant upon his return (J[27]); and

(5)    thus, the Authority dealt with the submission that the appellant was in danger because he originated from and had connections with Vanni (J[28]).

36    As the primary judge noted at J[28], with reference to Applicant WAEE, this is a case of a finding on a particular matter being subsumed in a finding of greater generality. I discern no error in the reasoning of the primary judge. Thus, the third ground of appeal also fails.

Other matters raised by the appellant

37    The appellant submitted that he could not return to Sri Lanka because of the prevailing situation and his brother’s high position within the LTTE. He also claimed that he had worked hard since arriving in Australia and was the cause of no trouble. These submissions invite merits review, which is beyond the jurisdiction of the Court below on a judicial review (and thus this Court on appeal), such jurisdiction being confined to deciding, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute upon the decision-maker, having regard to the circumstances extant when the decision was made: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [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).

38    The appellant also submitted that he was unsuccessful before the primary judge because of the incompetence of his legal representation. This is not a ground of appeal in the Notice of Appeal and I refuse leave to rely upon it in circumstances where there is no evidence supporting the assertion of incompetence and in view of the burden of proof faced by a party propounding such an assertion: see Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159 at [118] (Jagot, O’Bryan and Cheeseman JJ).

conclusion

39    The appeal should be dismissed, with costs. I will make orders accordingly. I will also make the amendment sought by the Minister to his title in this proceeding.

Associate:

Dated:    27 September 2022