Federal Court of Australia

AJJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1299

Appeal from:

AJJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3263

File number:

WAD 578 of 2019

Judgment of:

BANKS-SMITH J

Date of judgment:

2 November 2022

Catchwords:

MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing review of fast track reviewable decision of Immigration Assessment Authority - where Authority affirmed decision of the delegate of the Minister to refuse grant of a protection visa - where appellant claimed to fear harm from Sri Lankan Criminal Investigation Department due to imputed connection with the Liberation Tigers of Tamil Eelam - whether Authority properly exercised power under s 473DD of the Migration Act 1958 (Cth) to not take into account new information provided by appellant - whether primary judge erred in consideration of evidence - appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 5H, 36, 360, 425, 473BB, 473CB, 473DC, 473DD, 473DF, Parts 5, 7, 7AA

Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29

BXT17 v Minister for Home Affairs [2021] FCAFC 9; (2021) 283 FCR 248

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76

Minister for Immigration and Border Protection v CED16 [2020] HCA 24

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217

Division:

General Division

Registry:

Western Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

66

Date of hearing:

18 October 2022

Counsel for the Appellant:

The Appellant was self-represented

Counsel for the First Respondent:

Ms C Taggart

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 578 of 2019

BETWEEN:

AJJ17

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:

BANKS-SMITH J

DATE OF ORDER:

2 November 2022

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant to pay the first respondent's costs in the fixed sum of $5,000.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This appeal arises out of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa.

2    The appellant is a citizen of Sri Lanka who arrived in Australia in October 2012 by boat. The appellant claims, in summary, that he fears harm from the Sri Lankan Criminal Investigation Department (CID) due to an imputed connection with the Liberation Tigers of Tamil Eelam (LTTE). The prospect of that connection being imputed is said to be based on his Tamil ethnicity; the fact that he was detained for three to four days by the LTTE in 2008; and his family connections with the LTTE. The appellant also claims that he would be detained and persecuted if he returned to Sri Lanka as a failed asylum seeker.

3    On 29 September 2016 the delegate refused to grant the visa, providing reasons that indicate that whilst parts of the appellant's claims were accepted, there were issues with the credibility of some of the evidence that undermined the veracity of the claims.

4    The delegate's decision was automatically referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth).

5    On 20 October 2016 the appellant provided written submissions and certain documents to the Authority.

6    On 22 December 2016 the Authority affirmed the delegate's decision not to grant the appellant a protection visa and provided reasons.

7    The appellant applied to the Federal Circuit Court of Australia (as it then was) for judicial review of the Authority's decision, and on 12 November 2019 the primary judge dismissed the application for review. The appellant now appeals from that judgment of the Federal Circuit Court.

Statutory context

8    Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some visa applicants. This includes visa refusal decisions relating to applicants who are unauthorised maritime arrivals that entered Australia on or after 13 August 2012 but before 1 January 2014. The appellant is within this cohort.

9    The manner in which Part 7AA operates has been the subject of a number of High Court authorities: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [13]-[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [3]-[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [2]-[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439.

10    In short, the review conducted by the Authority is a limited form of merits review established under Part 7AA of the Act. There is no obligation on the Authority to invite a review applicant to appear before it to give evidence and present arguments relating to the purported issues arising in the decision under review. This distinguishes the process in Part 7AA from that contemplated in Parts 5 and 7, where360 and425 impose an obligation on the Administrative Appeals Tribunal to invite the applicant to appear before it to give evidence and present arguments regarding the decision under review. Of some importance in this appeal is the fact that no new information is to be taken into account by the Authority unless certain criteria set out in473DD are met. Reviews are generally conducted on the papers.

Information before the Authority

11    In conducting its review, the Authority had regard to the material referred to it by the Secretary of the Department under473CB of the Act.

12    It also had regard to a written submission and certain documents provided by the appellant.

13    Although on this appeal the appellant did not raise any question as to the application of473DD of the Act to 'new information', its application was raised by the Minister on the basis that it might be relevant, and having regard to the status of the appellant as self-represented.

14    Accordingly, after addressing the proceeding more generally, I will also address below the principles and the Authority's reasons with respect to473DD.

Protection claim

15    The Authority summarised the appellant's protection claims at para 7 of its reasons as follows:

    He and his family were displaced in 1996 as a result of the war. They lost all of their property and their cattle.

    In 2008 he was caught by the LTTE. He was taken to an underground hiding place and held for 3 to 4 days. He managed to escape and return to his family.

    After his escape, his family moved from place to place trying to escape the LTTE.

    One day the SLA took the whole family to a refugee camp. After 2010 although he was working in Sri Lanka his intention was to go outside of Sri Lanka because he feared he would be captured.

    His parents feared for his life. On his mother's side they lost all of the male siblings to the SLA and the bombing in 1990; they also stabbed his cousin and he died. His parents worried because he had already been captured once by the LTTE.

    The Criminal Investigation Department (CID) came to his house. The stood on a bridge to look at him. The CID came around constantly looking for kids like him, watching what they were doing and who they were involved with. He thought that if he stayed he would be beaten by the CID.

    After he left Sri Lanka, a man from the neighbourhood was taken by the CID and hasn't been seen again. The man was an ex-LTTE member which is why he thinks he was taken.

    He is not listed on the family card; if he goes back they will know that he is not listed and it will cause lots of suspicion. The CID will think he is an LTTE member and won't believe that he was forcibly taken. There is a fear that if the CID let people like him be free, there could be another uprising from the LTTE.

    He knows that someone who went home from Australia was taken and beaten by the CID for three days. The person was someone his parents had heard about, not someone he knows. Afterwards he heard the man left the village.

    If he goes back to Sri Lanka the CID will harm him and kill him and there won't be anyone to look after his family.

16    The appellant has not raised any deficiency in that summary.

The Authority's findings

17    In relation to the appellant's imputed LTTE connections, the Authority accepted that the appellant had been kidnapped by the LTTE for three days in 2008 and had escaped and returned to his family before he could be taken for LTTE training.

18    However, having regard to inconsistencies in his evidence, the Authority did not accept that his family had moved from place to place after his kidnapping, but rather accepted that they stayed at a makeshift camp until crossing into Sri Lankan Army (SLA) controlled territory at the end of the war.

19    While the Authority accepted that the appellant's family was visited by the Sri Lankan authorities as part of routine monitoring, it did not find that this displayed any interest specifically in the appellant or his family. The Authority referred to the appellant's evidence that although he claimed the CID were near his house, he did not know who they were watching. After some conflicting evidence that no-one had come to his parents' house to ask about his location, the appellant agreed that the SLA and CID had not noticed that he was not there.

20    The Authority concluded that the appellant was never questioned, detained or arrested, or in any other way singled out for attention by the Sri Lankan authorities in relation to either the kidnapping incident (about which the appellant stated nobody knew) or any family LTTE connections and so was not satisfied the appellant is or was a person of interest to the Sri Lankan authorities on the basis of actual or suspected LTTE or separatist connections or sympathies.

21    As to the appellant's extended family being associated with the LTTE, the Authority found that these family relationships had not resulted in any repercussions for the appellant.

22    The Authority was not satisfied that the appellant's father had any association with the LTTE or that the appellant might be imputed with pro-LTTE sympathies because of that family relationship. It considered that questioning of the appellant's father by the SLA on arrival at an internally displaced persons camp appears to have been part of the routine screening and registration of displaced arrivals by the authorities and noted that his father was not questioned again by the authorities or subjected to any other type of interest from the Sri Lankan authorities.

23    Having considered country information as to the benefit of a 'family card' upon any return to Sri Lanka, the Authority was also not satisfied that the appellant's name being absent from the family card gave rise to any risk of harm from the CID, notwithstanding other administrative difficulties it might present.

24    As to the appellant's Tamil ethnicity, the Authority acknowledged that Tamils have been subjected to discriminatory treatment in Sri Lanka and that the appellant may have faced hardships as a consequence. However, the Authority was not satisfied that the appellant has a well-founded fear of persecution as a young Tamil. The political climate in Sri Lanka was also taken to have improved since the civil war, and the Authority was not satisfied that there is a real chance the appellant would suffer serious harm now or in the reasonably foreseeable future based on his Tamil ethnicity, if returned to Sri Lanka. In particular, the Authority said:

32.    I am not otherwise satisfied that the applicant is at risk of harm on return to Sri Lanka on the basis of his Tamil ethnicity or imputed political opinion. The UNHCR's 2012 Guidelines state that 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. Since that assessment, there have been further developments in the country that indicate that the situation for Tamils has improved, particularly since the election of the Sirisena government.

37.    Assessing the evidence overall, I am not satisfied the applicant has a well-founded fear of persecution as a young Tamil male from a former LTTE area. I accept that as a young Tamil male the applicant has experienced hardships as a result of the war which resulted in he and his family being displaced over a number of years with the resulting loss of property and sense of security. However, apart from the incident which I accept occurred - his kidnap and the subsequent displacement to an IDP camp - the applicant with his family has been able to return to the family property in the Kilinochchi district and since 2010 he has been employed in digging tube wells. There is no evidence before me that he has been unable to obtain paid employment or that he has otherwise been unable to access basic services. Considering the applicant's circumstances together with the country information about the changing country conditions I am not satisfied there is a real chance the applicant would suffer serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his ethnicity or imputed political opinion.

(footnotes omitted)

25    The Authority also accepted that the appellant left Sri Lanka unlawfully and will be identified by Sri Lankan authorities as an illegal departee and failed asylum seeker on his return. It was accepted that the appellant may be questioned, fined and briefly detained under Sri Lankan law upon his return, but that these are generally applicable laws which are not discriminatory and do not constitute persecution. The Authority did not consider such treatment to amount to serious harm, concluding:

44.    Available country information indicates that being a failed asylum seeker or returnee from a western country will not itself result in harm nor does being of Tamil ethnicity. There may be some risk of harm where a returnee is identified as having an adverse profile (for example, a serious criminal record or suspected LTTE links). As discussed above, however, I have found that the applicant will not be suspected of having an actual or imputed connection to the LTTE on return to Sri Lanka, nor is there evidence he would be viewed as having committed a serious crime which would lead to harm on return, including during processing at the airport on arrival in Sri Lanka. I am not satisfied the applicant faces a real chance of any harm on return to Sri Lanka for reasons of having left Sri Lanka illegally or because he will be returning as a failed asylum seeker, including due to his Tamil ethnicity.

45.    Considering the totality of the treatment that the applicant will experience, that is, questioning by the authorities during investigations at the airport, combined with possible brief detention in what are overcrowded and unsanitary conditions, and the imposition of a fine, I find that this treatment does not amount to serious harm. The I&E Act applies to regulate all arrivals and departures from Sri Lanka; the offence provisions apply therefore equally to all persons who depart Sri Lanka illegally and return. Case law states that a generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination. The law is not discriminatory on its terms nor, on the evidence before me, is it selectively enforced or applied in a discriminatory way. Accordingly, I find the investigation, prosecution and punishment of the applicant for illegal departure under the I&E Act does not amount to persecution within the meaning of s.5J(4) of the Act.

(footnotes omitted)

26    The Authority concluded that the appellant did not meet the requirements of a refugee under5H(1) of the Act and was not eligible for protection under36(2)(a):

46.    In considering the applicant's claims in their totality, that is, as a young Tamil male from the Northern Province who was displaced from his family home, kidnapped briefly by the LTTE, spent time an IDP camp, who has relatives who were in the LTTE one of whom was recently released from rehabilitation, and who left Sri Lanka unlawfully and will be returning as a failed asylum seeker, I am not satisfied that taken together, the applicant is at risk of significant harm now or in the reasonably foreseeable future.

27    For similar reasons, the Authority concluded that the appellant did not meet the requirements of the complementary protection assessment under36(2)(aa).

Before the Federal Circuit Court

28    The appellant raised three grounds before the Federal Circuit Court. These were:

1.    Jurisdictional error

2.    Bias based on conscious or unconscious prejudice by ignoring relevant material

3.    Identifying a wrong issue on a wrong question.

29    These grounds of appeal were not particularised in any further detail, which led the primary judge to conclude that none of the grounds could be made out.

30    The primary judge was satisfied that on the face of the Authority's reasons it had complied with its statutory obligations in the conduct of the review. As to the allegation of bias by reason of allegedly ignoring relevant material, no relevant material had been identified before the primary judge which the Authority ignored. As to the third ground, no wrong issue or wrong question had been identified by the appellant and so no jurisdictional error was made out. Accordingly, the primary judge dismissed the application.

31    The primary judge noted that the appellant's oral submissions were, in substance, an invitation to engage in merits review. However, before dismissing the application, the primary judge gave consideration to the appellant's submissions, presumably to ensure that despite the general manner in which the review grounds were phrased, there was not a more specific ground contained within those submissions. It is not necessary to set out the reasons in detail. It suffices to record that the primary judge addressed the submissions as follows.

32    As to the appellant's submission to the effect that the Authority had failed to determine the Minister's case by a standard beyond reasonable doubt, the primary judge noted correctly that it was for the appellant pursuant to5AAA of the Act to satisfy the Authority of his claims.

33    As to the submission that as a young Sri Lankan Tamil he would face persecution, insufficient protection, and subjective fear, the primary judge noted that the Authority had taken into account that the appellant was a young Tamil male and the area from which he came, but had made adverse findings in respect of his claims under the 1951 Refugee Convention and in relation to complementary protection. The primary judge considered that those findings were open to the Authority having regard to the reasons that were given, and that the findings were not illogical, irrational nor unreasonable.

34    As to the submission made by the appellant that 'close members' of his family had been killed by the Sri Lankan army, the primary judge noted that the Authority had accepted the appellant's family members' association with the LTTE and had taken that into consideration in its reasons.

35    The primary judge also addressed a submission by the appellant to the effect that the Prevention of Terrorism Act 1978 (Sri Lanka) and its application was not assessed or considered by the Authority, noting it was apparent on its face that the Authority referred to this Act and took it into account.

36    As to the submission that the Authority did not examine the situation in Sri Lanka as it concerned young Tamils, the primary judge referred to the fact that the Authority expressly took into account country information in relation to Tamils.

37    As to the appellant's submission that the 'UNHCR was and is now examining human rights abuses' by the Sri Lankan army against Tamils, the primary judge observed that if this submission was a reference to the Human Rights Watch report, it was determined that it did not meet the requirements of473DD(b) and was therefore not before the Authority.

38    The primary judge also addressed the submission made by the appellant that the Authority never examined issues concerning the population of 'war widows' in northern and eastern Sri Lanka, now occupied by a large Sinhalese contingent, noting that this appeared to be an identification of new information and a new issue which was not advanced by the appellant before the Authority. Given this, the primary judge concluded it was not capable of giving rise to any error in relation to the merits of the applicant's claims.

39    As to the submission relating to bias that alleged that the Authority was influenced by one sided information, the primary judge noted that allegations of bias are serious and must be clearly proved. The primary judge did not consider such bias had been proved.

Ground of appeal before this Court

40    In the notice of appeal, the appellant relies on only one ground of appeal, articulated in the following terms:

The Primary Judge didn't adequately examine the evident that was placed there by didn't exercise the Courts proper Jurisdiction.

41    The ground is not particularised in any further detail. What the appellant contends by their single ground of appeal is not immediately clear, although it seems likely it is intended to mean that the primary judge did not adequately examine the evidence before the Court and therefore did not properly exercise the Federal Circuit Court's jurisdiction. I have proceeded on this basis, whilst considering more generally whether error might be disclosed.

The application of473DD

42    In order to assess the aspect of the appeal that might, in the appellant's favour, relate to whether the Authority should have had regard to additional evidence provided to it by the appellant, it is necessary to consider s 473DD.

43    Section 473DD is in the following terms:

Considering new information in exceptional circumstances

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

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

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

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

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

44    What is 'new information' is defined by473BB and473DC(1) as documents or information that were not before the Minister when the Minister refused the protection visa and that the Authority considers to be relevant.

45    On 20 October 2016 the appellant sent the Authority a series of emails that attached:

(1)    a one page written submission addressed to the Authority;

(2)    a 'Human Rights Watch' bundle that included a covering statement dated 30 June 2016 titled 'UN Human Rights Council: High Commissioner's reports on human rights of Rohingya Muslims and other minorities in Burma/Myanmar and on Sir Lanka' and pages 2-7 of a report titled 'World Report 2016: Sri Lanka'; and

(3)    excerpts from the Prevention of Terrorism Act 1979 (Sri Lanka).

46    The Authority commenced its reasons by considering those documents. In particular, the Authority said:

4.    On 20 October 2016 the applicant sent a series of emails to the IAA comprising a submission, a copy of a Human Rights Watch 2016 report on Sri Lanka and extracts from the Prevention of Terrorism Act 1979 (PTA) of Sri Lanka. Reference to sections of the PTA was included in the Department of Foreign Affairs and Trade report that was before the delegate. Accordingly, I do not consider the extracts from the PTA to be new information. The Human Rights Watch report does not appear to have been before the delegate and I consider it to be new information. I note the publication date is 30 June 2016; it therefore pre-dates the delegate's decision. The new information is country information and does not relate to the applicant personally. The applicant has not provided reasons why the new information could not have been provided to the delegate before the decision was made. In the circumstances I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.

5.    With one exception the applicant's submission comprises his response to the delegate's decision. To the extent he takes issue with those findings I consider this does not constitute new information and I have had regard to it. In his submission the applicant also made the new claim that he would be perceived by the Sri Lankan army (SLA) as a Liberation Tigers of Tamil Eelam (LTTE) supporter due to his association with student movements while he was in Sri Lanka. This claim was not before the delegate and I consider it to be new information. The new claim relates to matters wholly within the knowledge of the applicant and relate to matters that pre-date the delegate's decision. The applicant has not advanced reasons why the information could not have been provided before the delegate made the decision nor why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant's claims. I note the applicant was not legally represented in his SHEV application process and interview. However, he was informed at the beginning of his SHEV interview that the IAA is only able to consider material provided to the Department unless exceptional circumstances apply and that further information may be considered if provided before a decision is made. The applicant's interview was conducted in the Tamil language and he indicated that he understood the interpreter and did not otherwise appear to have difficulty participating in his SHEV interview. He was also specifically asked at the end of his interview whether he was sure he had put forward all his claims and he stated he had. In the circumstances, I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.

47    As is revealed by the terms of s 473DD, information amounts to 'new information' if it meets two conditions. The first is that the information was not before the Minister at the time of making the referred decision. The second is that the Authority considers that the information might be 'relevant' to the review, meaning that the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [3].

48    The High Court in AUS17 confirmed that473DD(b) imposes a duty on the Authority to consider whether any new information it receives meets the statutory criteria set out in that section and can thereby be taken into account by the Authority in the making of its decision. In undertaking that analysis the plurality in AUS17 mandated that the proper way to assess new information was to first assess whether it satisfies the criteria set out in473DD(b)(i) and473DD(b)(ii), before assessing the information against473DD(a). If either or both of the criterion in473DD(b)(i) or (ii) is satisfied, then that is a circumstance to be taken into account in assessing s 473DD(a): AUS17 at [11]-[12]; BXT17 v Minister for Home Affairs [2021] FCAFC 9; (2021) 283 FCR 248 at [137] (Markovic, O'Callaghan and Anastassiou JJ).

49    I consider that the Authority's reasons indicate that it properly complied with its duty under473DD. It commenced by identifying which aspect of the submissions and documents constituted new information and then turned to the matters relevant to s 473DD(b).

50    As to the written submission, the Authority's finding that only part of the submission was new information is apparent from the content of the submission - the only new information was a claim that the appellant would be perceived by the SLA as an LTTE supporter due to his association with student movements while in Sri Lanka. The Authority then turned to consider whether the information could have been provided to the delegate before the decision, and whether it was credible personal information, having regard to the full disclosure that had been made to the appellant prior to the hearing before the delegate of the need to put forward all relevant information. These were matters clearly relevant to a consideration of473DD(b) and the Authority expressly referred to s 473DD(b) and not473DD(a). Therefore, it is apparent that the Authority undertook the task in a manner consistent with that mandated by AUS17.

51    As to the parts of the submissions that were not new, the Authority indicated it would have regard to them.

52    As to the Human Rights Watch bundle, the Authority noted that it was not before the delegate and that it constituted new information. It then noted both the date, which predated the delegate's decision, and that it did not relate to the appellant personally. Again, these observations relate to473DD(b) and it is apparent that the Authority undertook the task in a manner consistent with that mandated by AUS17. The fact that it did not expressly refer to473DD(b) when making those observations is not determinative: it is apparent from its reasons that it had in mind473DD(b).

53    As to the extracts from the Prevention of Terrorism Act, the Authority observed that the provisions were incorporated in country information that was before the delegate (more particularly, the DFAT Country Information Report Sri Lanka, dated 18 December 2015) and so the information in the extracts was not new and did not fall to be considered in the context of473DD(b). Rather, it was within information already before the Authority.

54    The appellant has not satisfied me that the Authority failed to have regard to any new information that it should have taken into account or failed to meet its obligations as mandated in AUS17. The appellant has not pointed to any other evidence that he asserts was disregarded by the Authority.

No articulated grounds

55    During the course of the hearing I encouraged the appellant to identify any particular evidence that he asserted was overlooked by the Authority or the primary judge. He was unable to point to anything, although he did indicate that it was difficult to provide proof of matters such as the fact that he had been forcibly taken by the LTTE. That he had been forcibly taken by the LTTE for three days was a claim that was accepted by the Authority, so the Authority did not draw an inference adverse to the appellant from an absence of further evidence in that particular regard.

56    Otherwise, the appellant was not able to point to any particular evidence said to have been overlooked but instead made general complaints as to the findings of the Authority, indicating disagreement with those findings. None of the matters referred to pointed to any jurisdictional error on the part of the Authority or error on the part of the primary judge.

Submission provided during hearing

57    During the hearing the appellant also handed up a one-page letter that was accepted by way of a written submission. Despite the lack of notice, counsel for the Minister was in a position to address the contents of the letter. Much of the letter constituted dissatisfaction with the outcome of the Authority's consideration of the merits of the claims, reiterating concerns about his safety upon any return to any part of Sri Lanka, but without engaging with or pointing to any particular error said to have been made by the Authority or primary judge.

58    However, there were two matters that might have purported to constitute appeal grounds relating to the decision of the primary judge, but they were not established.

59    First, there was a complaint that the primary judge did not engage with the facts, with a reference to [6] of the reasons of the primary judge. That paragraph addresses the Authority's decision not to call for or obtain a document that was referred to in the appellant's submission provided to the Authority (letter from the 'Member of Parliament from Sri Lanka'). The appellant did not provide the document. The primary judge referred to the Authority's reasons where it explained why it did not obtain the document, and the absence of any obligation on its part to do so.

60    The statutory provisions support the approach of the Authority: s 473DF(4). The Authority also noted that the appellant had received a fair and reasonable opportunity to provide information and evidence in support of his claim. Accordingly, the primary judge's conclusion that the Authority gave proper reasons for not seeking out the document that the appellant referred to but did not provide does not disclose error.

61    Second, there was criticism that the primary judge failed to examine the factual findings reflected at [12] of his reasons. Paragraph [12] refers to the Authority's consideration of the Immigrants and Emigrants Act 1949 (Sri Lanka).

62    The Authority accepted that the appellant had left Sri Lanka unlawfully and that he would be identified on return as an illegal departee and failed asylum seeker. The Authority considered the effect of this in some detail (paras 38-45 of its reasons). It relied upon country information in reaching its conclusion, including information provided by Sri Lanka's Attorney General's Department, which is responsible for prosecutions. It accepted that the appellant would be questioned upon return to Sri Lanka: see para 45 of the reasons, extracted at [25] above.

63    The appellant did not refer to any error in the Authority's approach to this issue, or conflicting country information or other evidence before the Authority that might undermine the conclusion it reached. It is true that the primary judge did not analyse the Authority's findings in any particular detail, but he accurately summarised them. The primary judge was alive to the relevance of the issue and did not overlook it.

Conclusion

64    I have carefully read the reasons of the Authority and the primary judge, taking into account the fact that the appellant is self-represented. I am not persuaded that the Authority's reasons disclose jurisdictional error. Nor has error on the part of the primary judge been disclosed. The primary judge was correct, in my view, to dismiss the appellant's review application before the Federal Circuit Court.

65    It follows that the appeal is dismissed.

66    The appellant is to pay the first respondent's costs fixed in an amount sought by the Minister, and being less than the scale fee, and being the sum of $5,000.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Associate:

Dated:    2 November 2022