Federal Court of Australia

BTJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 5

ORDERS

THE COURT ORDERS THAT:

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

2.    The third and fourth respondents be relisted as the second and third appellants respectively.

3.    The appellants are refused leave to rely on particular m. of the second ground of the amended notice of appeal dated 10 October 2021.

4.    The appeal is dismissed.

5.    The appellants are to 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

FARRELL J:

Introduction

1    This is an appeal from a decision of a Judge of the Federal Circuit Court of Australia (as that Court was then known) (FCCA): see BTJ17 v Minister for Immigration & Border Protection [2021] FCCA 962 (J or primary judgment).

2    The FCCA Judge dismissed an application made by the first appellant (to whom I will also refer as BTJ17) and two members of his family unit (BTK17 and BTL17) for judicial review of a decision of the Immigration Assessment Authority (or IAA). The IAA decided to affirm decisions of a delegate of the responsible Minister to refuse to grant them Safe Haven Enterprise visas (or SHEVs) for the reasons set out in its decision record dated 27 March 2017 (D). The roles of BTK17 and BTL17 in these proceedings are discussed further at [29] and [33] below.

Background

3    BTJ17, BTK17 and BTL17 are “unauthorised maritime arrivals” as defined in s 5AA of the Migration Act 1958 (Cth), having arrived by boat at the Cocos Islands in 2012. It is not contentious that they are citizens of Sri Lanka, from the Northern Province, ethnically Tamil and religiously Hindu.

4    BTJ17 applied for a SHEV on 7 March 2016, including BTK17 and BTL17 as secondary applicants. While BTK17 and BTL17 made separate statements and claims, their principal claims arose from BTJ17’s claims and, at their request, their applications were considered as members of BTJ17’s family unit. They claimed that they feared persecution in Sri Lanka because of their ethnicity, religion and imputed political opinion; because BTJ17 had to report to police stations over the years and because they had left Sri Lanka illegally and sought asylum in Australia. The FCCA Judge enumerated the claims of each of BTJ17, BTK17 and BTL17 at J[15]-[17].

May 2016 statement

5    BTJ17 provided the delegate with a statutory declaration in support of the visa application, dated 6 May 2016 (May 2016 statement). In his May 2016 statement, BTJ17 attested to having been involuntarily taken by the Sri Lankan Army (SLA) to an army camp. The FCCA Judge set out an extract from that statement at J[34] as follows (emphasis added by the FCCA Judge):

37.    Sometime in the end of 2008, early 2009, the curfew was over but we would still be checked by police or army on the road whenever we went anywhere. ...

38.    … the army … would wait for us … and take us. You can’t say no to the army so we had to go.

…

40.    Soon the army began bringing in dead people, and the dying, in the army trucks. These were Tamil people who had been attacked and killed by the army. We had to get those bodies and people out from the trucks. Some people were missing limbs and still alive. There was blood and flesh everywhere. The army would put the bodies into a bulldozer and take them away.

…

42.    During that time there was UNHCR and ICR people functioning in the area, everyone knew what was going on. Some army officials videoed, quietly, the people and the bodies. They are now selling the videos.

Extract from delegate’s interview

6    The delegate conducted an interview with BTJ17, which appears to have occurred on 11 May 2016. In the FCCA proceedings, the current representative of BTJ17, BTK17 and BTL17 provided an affidavit appending a written transcript he had made from an audio recording of the interview. That transcript included the following exchange:

Case officer:     yes you mentioned that … the army used to bring in dead bodies can you tell me about that

Interpreter:    … one instance like I had to go with them and while I was there like I sighted I witnessed lots of bodies an injured people were brought in.

Case officer:     so this was at an Army base

Interpreter:    …whether we like it or not when they ask something we have to oblige and go and do their work. OK so we’re supposed to do that work … for them, but when they take us to do their work, but at the same time they will ask us to unload the dead bodies and those sort of –

Case officer:     So when you went to do … work for the army was that at the army base

Interpreter:     OK so it’s inside the army camp so as we enter like yeah they will take our IDs and everything.

Case officer:     OK that’s I was a bit confused … but now I understand, yeah, it was at the Army base

Interpreter:     Say like in that place when we were working like yeah all international aid workers like the companies were there, like ICRC, UNHCR and all the officers were in that village.

Case officer:    OK when you unloaded the bodies what happened to the bodies.

Interpreter:    We don’t know what happens to the bodies but like when they bring their body in the bus, like and … we have to unload the dead bodies ...

Case officer:    And then did somebody take those bodies away or

Interpreter:    OK so we don’t know like yeah they will take the bodies together

Post-interview submissions

7    On 19 May 2016, the former representatives of BTJ17, BTK17 and BTL17 made post-interview submissions to the delegate which included the following paragraphs (citations omitted):

43.    The International Truth and Justice Project Sri Lanka report outlined that the 2015 victims interviewed were often tortured:

“To maintain control over the Tamils through an atmosphere of oppression and tyranny and deter them from testifying against the government in upcoming justice initiatives.”

44.    This is relevant given the atrocities witnessed by [BTJ17] … in 2009.

8    On 29 September 2016, in separate decisions, the delegate refused to grant a SHEV to each of BTJ17, BTK17 and BTL17. Their applications were referred to the Authority for review.

Father’s letter provided to the Authority

9    On 20 October 2016, BTJ17 provided to the Authority a letter from his father written in Tamil. On 26 October 2016, the Authority was provided with an English translation of the letter (father’s letter). The unredacted father’s letter is set out in the Appeal Book at p 597. A redacted form of the father’s letter is as follows (emphasis added):

TO WHOM IT MAY CONCERN

I, … of the above address, wish to inform you that, I am a United National Party political supporter in Jaffna district. I have …

They are joining with me for Sri Lanka Election period to UNP supporter. If they were working election activities, they were threatning by unknown arms group. So, they were kidding various places because they are young person. ….

Every parliament election myself and my [family] were supporting political activities. They were continuous watched up by some of unknown arms group. On … 2012 unknown peoples came to our house, and told them get out from your house, nothing we destroyed your family.

So, my … were threatened and escape from their house. Then on … 2012 went to Australia by ship because they were afraid. After they went to Australia unknown peoples came and harresing me continiously.

The Sri Lanka politic change from SLFP. to UNP. But no use us. Unknown peoples continiously came to my house and ask … about them.

Within three months period they came two times and asked about my … . Where are they? On 12.09.2016 they close their faces by black textile. They told me, if your … family came to this village we will shoot them. In this threatning my family is living with afraid.

In this condition my … family will come here no safety for their future life.

I, informed you that presently condition, my … family will come here, their future life is threatning by unknown peoples to them.

Authority’s Decision

10    The Authority conducted and decided the reviews of BTJ17, BTK17 and BTL17 together.

11    At D[7], the Authority set out its reasons for not accepting the father’s letter for consideration under s 473DD of the Migration Act as follows:

On 20 October 2016, the primary applicant provided the IAA with a document in Tamil. The IAA advised the primary applicant that documents need to be translated in English. On 26 October 2016, the primary applicant provided an English translation to the IAA. The document is a letter from the primary applicant’s father, dated 20 October 2016. This letter post-dates the delegate’s decision and I am satisfied that it is new information. The applicants’ post-interview submission does not state that the applicants are seeking further information from Sri Lanka. The correspondence with the IAA does not explain why this letter could not have been provided before the delegate’s decision. Having considered these factors, I am not satisfied that there are exceptional circumstances to justify considering this new information.

12    In a section summarising BTJ17’s claims for protection, the Authority observed as follows at D[8]:

At about the same time, the primary applicant was working [redacted]. [BTJ17 and others] had to help the SLA… [BTJ17] was sent to the SLA camps to do this work. Sometimes the trucks were being used to carry dead bodies and he was forced to unload the bodies and put them onto bulldozers. He stopped working [redacted] because of this.

13    In a section under the heading “Harassment by SLA”, the Authority set out its findings as follows:

24.    The primary applicant claims that he has suffered a number of instances of harassment by the SLA. These include being forced to remove dead bodies from vehicles at SLA camps while he [redacted], having goods stolen from his shops, being asked to pay bribes, being forced to lend his motorcycle to the SLA and being beaten up by drunken soldiers. As the primary applicant was a young Tamil male living in the Northern Province, I accept that he may have been subject to such harassment and threats by the SLA but I find that this was opportunistic and I am not satisfied that he was targeted because he was of adverse interest to the authorities.

25.    The primary applicant claims that the SLA would also come to his home and harass him. At the interview, he explained that this occurred when he worked in a wholesale trading company. His home was closer to the SLA base and sometimes he would have items at his home for the SLA to pick up. The SLA did not pay for the items and the primary applicant’s boss told him to stop supplying the goods. The SLA was angry that it did not get its goods and began harassing the primary applicant at his home. This is plausible and I am satisfied that the SLA may have visited the primary applicant’s home to pick up items and when they were refused, may have harassed and threatened the primary applicant. I do not accept that the SLA would have had an ongoing interest in the applicant such that they would constantly visit his house, search for him elsewhere, question his relatives and confront him at his new workplace. I find that the primary applicant has suffered threats and harassment as he has claimed but these were opportunistic incidents relating to business difficulties and were not related to the primary applicant because of any adverse security or other profile. I am also satisfied that any harassment he may face should he return to Sri Lanka will similarly be opportunistic. I am not satisfied that the SLA or other government authorities have any ongoing interest in the primary applicant, or that they have been searching for him as he has claimed.

26.    In the post-interview submission, [BTJ17] also refers to country information that suggests Tamils are at risk of abduction to deter them from testifying against the government in upcoming justice initiatives. [BTJ17] submits that this is relevant given the atrocities he witnessed while working at the [army camp]. If this information is true, there is no evidence before me that [BTJ17] witnessed atrocities being committed and while I accept that he was forced to help remove dead bodies from vehicles, he has never claimed to have witnessed any other activities, made any complaints or statements or taken any other action that could lead to his being targeted. I am satisfied that he is not at risk for any reason in relation to his duties….

Note that D[26] has been redacted in the same manner as by the FCCA Judge at J[40].

14    The Authority found that BTJ17, BTK17 and BTL17 did not have a well-founded fear of persecution or significant harm based on the claims they had raised. Those findings are summarised at J[21], and the majority of those findings are not in issue in this appeal.

15    The Authority concluded that BTJ17, BTK17 and BTL17 did not meet the refugee criteria in s 36(2)(a) of the Migration Act, nor the complementary protection criteria in s 36(2)(aa) of the Migration Act, and affirmed the decision not to grant them SHEVs.

Application to the FCCA

First ground of review

16    The FCCA Judge (at J[22]) recorded the first ground of review as set out in the further amended application as follows:

The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by a jurisdictional error of the type identified in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, in that the Authority failed to comply with s 473DD of the Act.

Particulars

(a)    The applicant provided a letter from the first applicant’s father to the Authority in support of his claims (the Letter).

(b)    The Authority found that the information was new information and thus s473DD applied, but refused to consider the evidence on the basis that s4730D(a) was not made out in the circumstances;

[D[7] set out here, see [11] above]]

(c)    The Authority failed to consider whether s 473DD(b)(ii) was satisfied and hence whether this could affect the consideration of whether s. s 473DD(a) [sic] was satisfied

(d)    The error was material in that the letter contained a new claim about the Sri Lankan authorities’ continued adverse interest in the applicant

[Bolded paragraphs of the father’s letter set out at [9] above]

(e)    If the Authority had considered this new information it could have come to a different conclusion in the review.

17    In relation to the first ground of review, the primary judge said the following at J[23]-[27]:

23.    The first ground of the (further) amended application relates to the letter from the first applicant’s father which the IAA did not consider because it did not believe that the circumstances warranted it. The applicants alleged that that amounted to a material failure by the IAA to observe the requirements of s.473DD of the Act and specifically s.473DD(b)(ii). They submitted:

30.    If the Authority had considered this new information it could have come to a different conclusion in [sic] the review in that the new information was corroborative of his claims that the Sri Lankan authorities maintained an adverse interest in him.

24.    The IAA’s reasoning for not considering the letter was set out in para.7 of its decision record, which the applicants quoted in their pleading. Their pleading also cited AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007, where the High Court relevantly said 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). (at 1011 [12])

25.    Section 473DD(b)(ii) required the IAA to consider whether the information set out in the letter was credible personal information that had not been known previously but, if it had been, might have affected the consideration of the applicants’ claims. The Minister accepted that the IAA had not considered whether the father’s letter was information of that sort and further accepted that the letter was not, on its face, incapable of meeting the relevant description.

26.    In AUS17’s case, the High Court described a failure to assess information against, relevantly, s.473DD(b)(ii) as:

… a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). (at 1011 [12] per Kiefel CJ and Gageler, Keane and Gordon JJ))

However, for such a breach to constitute jurisdictional error on the part of the IAA, the breach must give rise to a “practical injustice”, which will occur if the breach is material to the IAA’s decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]. A breach of a duty will usually be material if discharging the duty could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at 788 [29]-[31].

27.    Notwithstanding his concession that the IAA had failed to comply with s.473DD(b)(ii), the Minister submitted that the letter said nothing that had not been said previously in support of the visa application and that, because those matters were considered by the IAA, its s.473DD(b)(ii) error was not material to the outcome of the review. The materiality of the information in the letter is a matter to be determined objectively.

18    At J[28], the FCCA Judge set out a detailed comparison of the content of the father’s letter with the information contained in the May 2016 statement and the Authority’s consideration of the material that was before it dealing with:

(a)    The claim that “the first and second applicants participated in election campaigning for the UMP and were threatened by armed groups”;

(b)    The claim that “on … 2012 the family home was visited by ‘unknown persons’”; and

(c)    The claim that “the house was visited on several more occasions after the applicants had left for Australia and on 12.09.2016 “they” came and asked the father about [family] and threatened to shoot them if they returned to the village”.

Relevantly to the pleaded particulars of the first ground of review, in relation to the claim in paragraph (c), the FCCA Judge found that, although there is no explicit reference to visits to the family house on 12 September 2016 in the Authority’s decision record, there was a claim before the Authority (made in BTJ17’s May 2016 statement at [85] and in BTK17’s statutory declaration dated 6 May 2016 at [45]) that people had come to BTJ17’s and BTL17’s parents’ houses to look for BTJ17, BTK17 and BTL17 after they had left Sri Lanka and found that the Authority dealt with this claim at D[29] (in relation to BTJ17) and D[37] (in relation to BTJ17 and BTL17).

19    The FCCA Judge then found as follows:

29.    The allegations contained in the applicants’ father’s letter were not wider in scope nor, apart from the reference to 12 September 2016, more particular than the allegations the applicants made themselves. Moreover, although the IAA accepted that:

a)    the first and the second applicant had been involved in incidents with people who met the description “unknown arms group”;

b)    people meeting the description “unknown peoples” did come to the family home; and

c)    after reciting the second applicant’s allegations that unknown people came to the house, including masked people on three occasions in 2012, the IAA made a comprehensive finding at para.37 of its reasons that it accepted that “unknown persons may have come to the house”,

it concluded, based on other material available to it, that those events did not carry the significance that was contended for them.

30.    The IAA did not deal specifically with the allegation in the father’s letter that masked individuals came to the family home on 12 September 2012 [sic] asking after the applicants and making threats. However, that allegation was really no more than a repetition of and elaboration on the allegations made by the first and second applicants that unknown people came to the house before and after they left Sri Lanka in 2012. Those claims were rejected by the IAA at para.29 of its reasons where it said:

As I am satisfied that [BTJ17] is not a person of interest to the authorities, paramilitary or political groups, I do not accept the claims that the authorities or any of these groups have been seeking the primary applicant since he left Sri Lanka in 2012.

and in para.37, where it said:

I have found that [BTJ17] ceased his involvement with the UNP prior to 2008 and was not a person of interest to the EPDP. It is also implausible that the EPDP would be searching for the primary applicant (who was no longer active) but not trying to locate/threaten the father (who was still an active UNP supporter). While I accept that unknown persons may have come to the house, I do not accept that they were EPDP, that they were searching for [BTJ17] to harm him or that they threatened to abduct or harm [BTL17]. …

31.    The father’s letter said nothing more, in substance, than the applicants had already said to the Department and there is no reason to think that the IAA might have been led to a conclusion different from the one it reached had it taken into account the letter’s expression, albeit in different terms, of claims already made.

32.    For those reasons I find that the IAA’s error in failing to consider whether the father’s letter met the test in s.473DD(b)(ii) of the Act was not material to the outcome of the review. I consequently find that that error does not justify the granting of constitutional writs.

Second ground of review

20    The FCCA Judge recorded the second ground of review at J[22] as follows:

The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in failing to assess the first applicant’s claims of being a witness to human rights abuses and atrocities.

Particulars

(a)    The Applicant was forced to participate in the disposal of dead and still living but wounded Tamil person’s bodies.

[May 2016 submissions at [40] set out here, see [5] above].

(b)    The Authority found:

[D[26] set out here, see [13] above]

(c)    The Authority did not dispute that the applicant was forced to dispose of dead bodies but did not consider about the applicant being forced to dispose of living but severely injured persons, and thereby misunderstood the factual basis underlying the seriousness of the claim.

(d)    [abandoned]

(references omitted)

It is relevant to note that particular (d) was as follows:

Insofar as the Authority’s reasoning may be taken to imply that the applicant did not have the characteristic of being a witness to human rights abuses, this lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40].

21    Under the heading “Witness to atrocities”, at J[34]-[35], the FCCA Judge set out the paragraphs of BTJ17’s May 2016 statement and much of the transcript of BTJ17’s evidence to the delegate reproduced at [5] and [6] above. The FCCA Judge then summarised the submission made by the applicants as follows at J[36]:

The applicants submitted that the evidence was to the effect that the first applicant had witnessed the handling of living people as well as corpses, the implication being that persons who were still alive were placed, with the corpses, on bulldozers to be, presumably, buried alive. The applicants submitted that amongst the first applicant’s claims was one that he had witnessed living people being placed on bulldozers which, they argued, the IAA had failed to consider.

22    Under the heading of “risk of abduction”, the FCCA Judge then set out (at J[37]) his understanding of the claimed link between what happened at the army camp, and the assessment of a risk of future harm as follows:

The significance of the first applicant having allegedly witnessed living people being placed with corpses onto bulldozers, presumably to be killed, was said to lie in the risk of harm faced by people who witnessed atrocities committed by an arm of the Sri Lankan government...

23    The FCCA Judge then referred to a number of country information documents submitted by BTJ17 as his “evidence before the IAA that being a witness in Sri Lanka to conduct of the sort witnessed by BTJ17 was sufficient to generate a risk of harm to that witness” (at J[39]). These were:

(a)    The International Truth & Justice Project report referred to in the post-interview submissions (see [7] above); and

(b)    The guidelines published by the United Nations High Commission for Refugees (UNHCR Guidelines) that had been referred to and cited in the Authority’s decision.

24    At J[38] the FCCA Judge set out a section of the UNHCR Guidelines as follows:

A.5    Certain Witnesses of Human Rights Violations and Victims of Human Rights Violations Seeking Justice

Observers have expressed concern over the absence of an effective mechanism to ensure the protection of and assistance to witnesses and victims of human rights violations and abuses. The UN Committee against Torture expressed concern in its November 2011 Concluding Observations about impunity in the cases of attacks, including against witnesses. This has an impact on the regular judicial system, but has also affected the LLRC [Lessons Learnt and Reconciliation Commission] proceedings.

Persons seeking justice after mistreatment by the police have reportedly been harassed and received threats, in an attempt to make them withdraw their cases. In August 2012, a complainant of a human rights violation was reportedly arrested and tortured by the police in Negombo. In February 2012, a Tamil businessman was reportedly abducted in Colombo, two days before the scheduled hearing in his Fundamental Rights case. He had reportedly filed a Fundamental Rights petition with the Supreme Court against the police concerning torture during 28 months of detention after his arrest in 2009. It was also reported that he had filed a petition with the Secretariat of the UN Committee Against Torture. Before and during the session of the UN Human Rights Council (HRC) in Geneva in March 2012, harassment and intimidation of human rights defenders, activists and NGO-workers engaging with the HRC process were reported by different sources. …

… Observers have also noted with concern that the LLRC lacks witness and victim protection mechanisms. Cases of hardship and subsequent harassment faced by civilians who testified before the LLRC have been reported, including the case of a witness who was summoned for an interview by the Criminal Investigation Department after having given evidence to the LLRC. Witnesses have reportedly been photographed by members of the security forces during LLRC sessions. In Jaffna, witnesses have reportedly been threatened by armed men.

25    The FCCA Judge then noted (at J[40]) the Authority’s finding at D[26] which is set out at [13] above and also cited in the pleading of the second ground of review.

26    At J[41]-[47], the FCCA Judge set out his findings in relation to ground two as follows:

41.     The applicants submitted that the IAA did not dispute that the first applicant had been forced to dispose of dead bodies but failed to consider his claim that he had been forced to dispose of living but severely injured person. They argued:

The disposal of the wounded living and dead bodies of victims of atrocities is itself part of the atrocity.

However, the first applicant’s evidence did not go so far as to say that he had witnessed the occurrence of an atrocity. He said that he helped to remove “bodies and people” from the buses and that the army “would put the bodies into a bulldozer” but he did not say that living people were put on bulldozers. The IAA correctly understood that to have been the case when it summarised … the first applicant’s evidence on this issue [at D[8]]:

At about the same time, the … primary applicant was sent to the SLA camps to … work. Sometimes … trucks were being used to carry dead bodies and he was forced to unload the bodies and put them onto bulldozers. … .

42.    That is to say, the IAA was correct to conclude that it had no evidence:

… that the primary applicant witnessed atrocities being committed and while I accept that he was forced to help remove dead bodies from vehicles, he has never claimed to have witnessed any other activities…

43.    The applicants submit in this proceeding that disposal of dead bodies was “itself part of [an antecedent] atrocity” but they were represented at the departmental stage and did not make that claim to the Delegate. Rather, their submission, quoted earlier, referred to “the atrocities witnessed by the applicant while working … in 2009”, which limited the claim to conduct witnessed at the camp. There was no error in the IAA not considering the wider claim concerning an antecedent atrocity now propounded for the first time: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 479 [1]; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 35 [37]; SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [57]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 513, 514 [30], [31].

44.    The other element of the applicants’ second ground was a contention that witnessing atrocities in the army camp was sufficient to give rise to a justified fear of harm. In support of that argument reference was made to the UNHCR guidelines quoted earlier [at J[38], the relevant section of which commences with the words:

Observers have expressed concern over the absence of an effective mechanism to ensure the protection of and assistance to witnesses and victims of human rights violations and abuses. The UN Committee against Torture expressed concern in its November 2011 Concluding Observations about impunity in the cases of attacks, including against witnesses. …

45.    That passage would, without more, suggest that witnessing certain events would justifiably lead to a fear of consequential harm. However, a fuller reading of the section makes it clear that the witnesses of whom it speaks are people who give evidence, make claims or otherwise bring human rights abuses to public attention. The passage set out in the box in the quotation most relevantly:

Persons of the above profile are, depending on the individual circumstances of the case, likely to be in need of international refugee protection on account of their (perceived) political opinion …

show that to be so. That section of the guidelines is concerned with individuals to whom are imputed political opinions by reason of their advocacy or complaints.

46.    It should be noted that the first applicant gave no hint of ever having wanted to speak publicly or make a complaint about his alleged experience or of having actually done so. On the evidence, there is also no reason to believe that he was censoring himself. It is difficult to see how a person who sees an atrocity committed by the Sri Lankan army but does nothing is likely to be imputed with a political opinion adverse to the Sri Lankan government or to need protection on that account.

47.    The first applicant did not fall into the class of persons the UN Guidelines identified as potentially being at risk of harm as witness to human rights violations and abuses. As a consequence, even accepting for the sake of argument that he saw an atrocity at the army camp, however described or characterised, I am not persuaded that the IAA erred by not considering the applicant’s circumstances by reference to those guidelines.

27    Having found no jurisdictional error in the Authority’s decision, the FCCA Judge dismissed the application.

Appeal

28    A notice of appeal was lodged on 25 May 2021 and accepted for filing on 31 May 2021.

29    At a case management hearing on 8 September 2021, I observed that BTK17 and BTL17 had been listed as respondents, where they would normally be appellants in this proceeding. Their representative, Mr Taylor, explained that this was due to technical difficulties in securing a waiver of lodgement fees on the day the appeal needed to be filed. The parties agreed that this position should be regularised by way of an amended notice of appeal.

30    Additionally, I asked Mr Taylor about particular (d) to ground two in the notice of appeal lodged on 25 May 2021, because it appeared to recite particular (d) to ground two that had been abandoned in the FCCA (see [20] above). At the case management hearing, I gave leave for filing of an amended notice of appeal which correctly states the grounds of appeal. Following the case management hearing, I made the following order:

3.    The appellant has leave to file and serve an amended notice of appeal by 4 pm on Wednesday, 29 September 2021.

31    An amended notice of appeal was not filed by that date. Following correspondence with Mr Taylor, I directed that the amended notice of appeal be lodged for filing by 4 pm on Wednesday, 13 October 2021. The amended notice of appeal was submitted for filing on 10 October 2021, and accepted for filing on 11 October 2021.

32    A few things need to be said about the amended notice of appeal.

33    First, BTK17 and BTL17 remain the third and fourth respondents. I will order that the third and fourth respondents are relisted as the second and third appellants. Along with BTJ17, they will be included in references to “appellants” in what follows.

34    Second, despite particulars a. to c. of the first ground of appeal, in light of the Minister’s concession, the only issue remaining for determination is whether the FCCA Judge was correct to find that the conceded error was not material to the Authority’s decision.

35    Third, particular (d) to the second ground of review was abandoned in the FCCA. Nonetheless, it appears in particular m. of the amended notice of appeal. The appellant requires leave to rely on that particular on appeal. For reasons set out at [52]-[57], that leave is refused.

36    Fourth, particular k. to the second ground of appeal seeks to raise issues derived from a separate FCCA judgment that is not the subject of this appeal. I address this issue at [47] below.

37    In both their written and oral submissions, the appellants argued the second ground of appeal before the first ground. It is convenient to address the grounds in that order.

Second ground of appeal

38    The second ground of appeal is as follows:

The Circuit Court erred in failing to find jurisdictional error in the second respondent’s decision because:

…

2.    The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in failing to assess the first applicant’s claims of being a witness to human rights abuses and atrocities.

a.    The Applicant was forced to participate in the disposal of dead and still living but wounded Tamil person’s bodies [CB168, statement of 1st applicant at paragraph 40]

[The May 2016 statement at [40] was set out here, see [5] above]

b.    The Authority found [at 26]:

[D[26] was set out here, see [13] above]

c.    The Authority did not dispute that the applicant was forced to dispose of dead bodies but did not consider about the applicant being forced to dispose of living but severely injured persons, and thereby in rejecting that the applicant was a witness to atrocities misunderstood the factual basis underlying the seriousness of the claim.

d.    The Authority’s statement cited by the Court that

[The last two sentences of D[26] were set out in unredacted form. The redacted form of D[26] is set out at [13] above]

e.    The Authority’s statement above in context fails to grapple with the fact of witnessing the apparently clandestine mass disposal of the bodies of Tamils as itself indicative of atrocity, moreover the statement that some were still alive at the time of disposal, to which he was himself witness, was itself the witnessing of a major crime capable of being a crime of international concern.

f.    Contrary to the findings of the Authority and implicitly of the Court, the disposal of dead Tamil bodies by bulldozer was also indicative of witnessing of atrocities and hence a matter plausibly giving rise to an enduring profile of adverse interest.

g.    The Circuit Court was plainly wrong in finding at 40 “That is to say, the IAA was correct to conclude that it had no evidence: that the primary applicant witnessed atrocities being committed and while I accept that he was forced to help remove dead bodies from vehicles, he has never claimed to have witnessed any other activities ...

h.    The clear and necessary implication of the Appellant’s evidence, accepted by the Court as the implication, is that the living wounded including those missing limbs who were transported with the dead in the trucks, were not only denied medical treatment necessary to survive such wounds, but were disposed of by way of burial.

i.    The Court erred in failing to find that this was a witnessing of an atrocity; and that such witnessing of an atrocity could attract a profile of adverse interest as a witness.

j.    The Court erred in finding that the Appellant’s not having made this evidence public meant that the Authority did not make a jurisdictional error in assessing this claim, and impliedly finding that he did not have a profile of adverse interest within the UNHCR eligibility guidelines, because: (a) the guidelines were descriptive rather than proscriptive of those witnesses to atrocities with a profile of adverse interest; (b) the fact of being a witness was for the purpose of s.5J of the Migration Act 1958 an immutable characteristic; (c) he could not under the Act be expected to suppress this evidence out of fear of known consequences of making it public; and (d) he had made the claim through providing it to the Australian authorities and hence would be at risk for having done so.

k.    The Circuit Court in its suppression application judgement found: As to the first part of the argument, because the first applicant had not alleged that he had witnessed the removal for burial of individuals who were still alive, the IAA did not express a view on whether he had a well-founded fear of persecution in Sri Lanka by reason of having seen such things. Absent any factual determination of this issue by the IAA, I am prepared to accept for present purposes that it is not unreasonable to suspect the risk of such harm were the first applicant to have witnessed the removal for burial of individuals who were still alive.

l.    The Circuit Court erred in failing to find that the claim to be a witness to atrocities through the failure to provide medical evidence [sic] to mortally wounded persons and the disposal of living human beings by bulldozer burial clearly arose on the materials as a necessary implication of his evidence.

m.    Insofar as the Authority’s reasoning may be taken to imply that the applicant did not have the characteristic of being a witness to human rights abuses, this lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40].

Appellants’ submissions

39    The thrust of ground two is that BTJ17 has an ongoing profile of adverse interest to Sri Lankan authorities due to being a witness to atrocities.

40    Mr Taylor submitted that the arrival of corpses and the living wounded to the army camp in army trucks, and the loading of corpses onto bulldozers, was itself an atrocity. He says that it is irrelevant that BTJ17 had not “yet” given evidence about what happened to the living. He contends that the Authority was required to draw, but failed to draw, the following inferences from the May 2016 statement:

(a)    That the corpses and living wounded arriving at the army camp were civilians or perhaps prisoners of war; that was an atrocity in itself;

(b)    That what BTJ17 saw at the army camp was the aftermath of antecedent war crimes and human rights abuses; and

(c)    On the basis of omissions from the May 2016 statement of any indication of what happened to the living wounded after arrival, that they were inhumanely treated, disappeared, were killed or left to die, and then buried or even taken away for some other torture; that was an atrocity in itself.

41    Mr Taylor submitted that:

(a)    The FCCA Judge erred by using circular reasoning to posit that the Authority failed to find that there was an atrocity at the army camp witnessed by BTJ17 being not only the disposal of Tamil bodies but also the disappearance of wounded victims;

(b)    In BTJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1491 (BTJ17 (No 2)) at [18], in dealing with an interlocutory application concerning the redaction of the FCCA Judge’s reasons for dismissing the review application, the FCCA Judge accepted that it was readily available to find on the materials that BTJ17 was involved in the enforced disappearance of the living wounded. It is definitely in BTJ17’s claims that the living were not being treated or allowed to survive; they were most likely being buried. The fact that BTJ17 did not specifically say that does not mean that he did not claim it, and it definitely did arise on the materials but was not addressed by the Authority;

(c)    The fact that BTJ17 did not say what happened to the living injured was itself enough to establish that he witnessed atrocities such as to place him within the particular social group of witnesses to atrocities. That it was too terrible to say it in words does not deny that it is the clear communication which BTJ17 was making. BTJ17’s characterisation as such a witness is an indelible one. Section 5J of the Migration Act requires that BTJ17 not be expected to hide that characteristic. Mr Taylor relied on the decision in BFV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1362; (2020) 171 ALD 628 (BFV18);

(d)    There is nothing in the Authority’s reasoning to indicate that it turned its mind to what BTJ17 was claiming occurred to the living but injured people;

(e)    If the Authority had had any doubt about the fate of the living wounded, then it should have considered inviting BTJ17 for an interview: see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17). There is nothing to indicate that the Authority considered doing so;

(f)    BTJ17’s work at the army camp occurred in 2009, a time during which heightened human rights abuses and war crimes have been reported as the civil war was coming to its conclusion. The Authority should have evaluated the May 2016 statement against that backdrop. If the Authority thought that the bodies and wounded were LTTE cadres killed in lawful combat, it should have said so;

(g)    Being a witness to atrocities was enough to bring BTJ17 within the guidance given in the UNHCR Guidelines. The FCCA Judge erred by interpreting “witness” to mean people participating in the giving of evidence or testimony in a proceeding. “Witness” also means an eyewitness, in the sense of a person who saw something occur. BTJ17 does, and always will, meet the definition of “witness”; and

(h)    BTJ17 is known to the SLA, having had to identify himself when entering the army camp and accordingly the Authority was wrong to read country information in the way that it did and the FCCA Judge erred at J[44]-[46].

42    I will not set out the first respondent’s submissions; they will be included to the extent relevant in the following consideration.

Consideration

43    This ground of appeal should be dismissed for the following reasons.

44    While there can be no doubt that the scenes BTJ17 describes at the army camp are horrific, in the context of a hard-fought civil war, the transport of corpses and wounded to an army camp and the removal of dead bodies to bulldozers is not, of itself, indicative of a war crime or human rights abuse. Contrary to the particulars, BTJ17’s evidence given in the May 2016 statement at [40] to the same effect to the delegate did not extend to BTJ17 saying that he was forced to participate in or witnessed the “disposal” of living wounded.

45    I perceive no error in the FCCA Judge’s reasoning at J[41]-[42]. In the May 2016 statement at [40], BTJ17 refers to corpses and wounded people, and treats them separately. BTJ17’s evidence to the delegate also treats “bodies” and “injured people” separately: see [5] and [6] above. BTJ17 said he did not know what happened to the bodies after they had been put in bulldozers and offered no evidence as to what happened to the living injured. In the section of the May 2016 statement addressing “future fears”, BTJ17 made no mention of being fearful of returning to Sri Lanka because he had unloaded bodies and living wounded at the army camp or because he was a witness to atrocities. Unlike other interactions with the SLA which BTJ17 described involving attempts by soldiers to extract bribes or the supply of materials or use of a motorcycle (summarised at D[24]-[25] set out at [13] above), BTJ17 gave no evidence of consequences in the aftermath of his decision to cease the activities that led to him being required to remove bodies and living wounded from vehicles.

46    I am satisfied that BTJ17 neither expressly nor implicitly claimed to have witnessed an atrocity at the army camp in relation to living injured or any antecedent war crime or human rights abuse or to fear serious harm as a result of being such a witness. Accordingly, there is no error in the quality of the Authority’s engagement with BTJ17’s evidence or the process of reasoning leading to the Authority’s finding at D[26] that, while it accepted that BTJ17 had been forced to remove dead bodies from vehicles, there was no evidence before it that BTJ17 witnessed atrocities being committed and that he had never claimed to have done so or undertaken any activity that would lead to him being targeted. The appellants’ contention that the Authority misunderstood the factual basis underlying BTJ17’s claim that he was at risk for having witnessed atrocities must be rejected.

47    The method of reasoning employed by Mr Taylor cannot be accepted. The fact that BTJ17 gave no evidence about, and said he did not know, how the living wounded were in fact treated after they were removed from the vehicles at the army camp does not prove that they were the subject of human rights abuses and war crimes or that BTJ17 witnessed atrocities such as the burial of the living wounded. Nothing turns on the language used by the FCCA Judge in BTJ17 (No 2) at [18] where his Honour said what is extracted in particular k. BTJ17 did not give evidence that he witnessed removal for burial of living wounded. The FCCA Judge was correct not to accept that such a claim had been made. Further, the extracted sentence was part of reasoning rejecting proposed redactions from the primary judgment. Those remarks do not aid the appellants’ appeal from the primary judgment.

48    In my view, the FCCA Judge did not err (at J[43]) in finding (for the reasons given) that there was no error in the Authority failing to consider whether there had been an antecedent atrocity to the delivery of the corpses and living wounded to the army camp. Mr Taylor contended that it was not open to the Authority to infer that the corpses and living wounded were LTTE operatives and combatants but it is not apparent that the Authority drew any such inference. BTJ17’s evidence was that they were “Tamil people attacked and killed by the army”, but that is not determinative of whether the “Tamil people” were combatants, collateral victims of combat or victims of war crimes or human rights abuses. To say that 2009 was a time of heightened human rights abuses at the conclusion of the civil war is an insufficient probative basis to make good the assertion that BTJ17 was a witness to antecedent human rights abuses or war crimes when he saw dead and wounded “Tamil people” in the trucks which arrived at the army camp and dead bodies were put in bulldozers.

49    The appellant cites ABT17 as authority for the contention that the Authority erred in making the findings it did without first inviting (or considering whether to invite) BTJ17 to an interview to provide further information. The circumstances of this case are far removed from those applying in ABT17. In ABT17, the High Court considered when it would be legally unreasonable for the Authority to depart from a delegate’s credibility assessment without inviting the referred applicant to an interview. The High Court held (at [22]-[25]) that although the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate, legal unreasonableness may arise where information that had been before the delegate was not before the Authority, so as to place the Authority in a disadvantaged position in comparison with the delegate in its credibility assessment. In this case, the Authority was not at an informational disadvantage relative to the delegate, because the Authority based its findings on the same material that had been before the delegate when making its decision. The Authority had no obligation to invite, or consider inviting, BTJ17 to a hearing to pursue his claim by giving further information: see s 473DC of the Migration Act. It is for the review applicant to make good his or her claims and provide evidence in support of them. The force of Part 7AA of the Migration Act is that the Authority will review the delegate’s decision by considering information provided to the delegate and “new” information within the bounds described in s 473DD of the Migration Act. BTJ17 was represented before the delegate and did not seek to provide further information about the factual basis of his claims.

50    Further, the appellants have not demonstrated any error in the reasoning of the FCCA Judge at J[44]-[45]. Contrary to Mr Taylor’s submissions, on a plain reading, the UNHCR Guidelines made it clear that the “witnesses” to “atrocities” regarded as being at risk are people participating in the giving of evidence, making claims or otherwise bringing human rights abuses to public attention. This issue was fundamental to the question of whether any fear held by BTJ17 was well-founded.

51    The factual basis for the assertion that BTJ17 was a member of the particular social group of witnesses to an atrocity within s 5J of the Migration Act was not claimed by BTJ17 in his evidence to the Authority. BTJ17 had not given any indication of ever having wanted to speak publicly or make a complaint about his alleged experiences or having actually done so. The basis for BTJ17 having a well-founded fear of persecution as a witness to an atrocity was not established having regard to the country information. In all of those circumstances:

(a)    The Authority did not err when it made its finding at D[26];

(b)    The FCCA Judge did not err at J[46]-[47]; and

(c)    The decision in BFV18 on which the appellants relied has no relevance to this appeal.

52    It is necessary to say something about particular m. which seeks to raise on appeal the same issue as particular (d) of the second ground of review which was expressly abandoned before the FCCA Judge.

53    The principles applicable to whether leave should be granted to argue a new ground on appeal were set out in the Full Court’s decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ) as follows:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

54    The appellant offered no explanation as to why the issue raised in particular m. is agitated on appeal, having been abandoned at first instance. That is somewhat surprising, given that the need for leave to raise such a ground was discussed at the case management hearing held in September 2021.

55    The failure to provide an explanation weighs heavily against the grant of leave. Although this Court has regularly entertained an issue raised for the first time on appeal in migration cases, this has generally been where the migrant was not legally represented in the FCCA proceedings. In this matter, the appellants were represented in the FCCA proceedings by the same representative as on the appeal. The abandonment of the equivalent particular in the FCCA must be taken to have been a forensic decision which militates strongly against the granting of leave to raise it on appeal: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [13]-[18]. Even if particular m. were meritorious, that alone is insufficient to find that it would be in the interests of the administration of justice to allow it: Han v Minister for Home Affairs [2019] FCA 331 at [15], [18]; Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516 at [43].

56    Particular m. contends that the Authority’s assessment of whether BTJ17 was a witness to an atrocity was illogical. In circumstances where I have found that the Authority’s reasoning in D[26] was open to it, particular m. lacks merit. It does not add anything to the appellants’ case that would justify the grant of leave.

57    Accordingly, leave for the appellants to rely on particular m. of the second ground of appeal is refused.

First ground of appeal

58    The first ground of appeal is as follows:

The Circuit Court erred in failing to find jurisdictional error in the second respondent’s decision because:

1.    The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by a jurisdictional error of the type identified in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, in that the Authority failed to comply with s 473DD of the Act.

a.    The applicant provided a letter from the first applicant’s father to the Authority in support of his claims (the Letter) [CB592-593, 597].

b.    The Authority found that the information was new information and thus s 473DD applied (Authority’s Decision at [7]), but refused to consider the evidence on the basis that s 473DD(a) was not made out in the circumstances;

[D[7] set out here, see [11] above]

c.    The Authority failed to consider whether s 473DD(b)(ii) was satisfied and hence whether this could affect the consideration of whether s. 473DD(a) was satisfied.

d.    The error was material in that the letter contained a new claim about the Sri Lankan authorities’ continued adverse interest in the applicant [CB597]

[Bolded passage from father’s letter set out here: see [9] above]

e.    The refusal to consider the evidence was material to the consideration of the applicant’s claims concerning how being a witness to atrocities gave rise to a profile of adverse interest to the authorities and put him at risk of serious and significant harm.

f.    If the Authority had considered this new information it could have come to a different conclusion in the review.

Appellants’ submissions

59    The appellants submitted that:

(a)    The father’s letter contained a new and very specific claim that inquiries concerning the whereabouts of BTJ17 and BTL17 and threats to their life if they returned to Sri Lanka had been made at the father’s house in September 2016. That claim was consistent with and supported BTJ17’s claim that he remained of adverse interest to authorities because of what he saw at the army camp;

(b)    FCCA Judge erred in finding that the Authority’s breach of s 473DD of the Migration Act was not material to its decision on the review on the basis that the allegation in the father’s letter was really no more than a repetition of and elaboration on the allegations made by the appellants that unknown people came to the house before and after they left Sri Lanka in 2012. In oral submissions, Mr Taylor emphasised that the death threats made against BTJ17 and BTL17 personally in the incident on 12 September 2016 reported in the father’s letter are different in quality to the claims made in the May 2016 statements made by BTJ17 (at [85]) and BTK17 (at [45]) that the father and BTL17’s parents “both report that people have been looking for us at their homes”;

(c)    This matter is on all fours with the decision in AJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277 (AJN19). If the Authority had considered the father’s letter, it would have had to determine whether the claimed incident in September 2016 had occurred and whether specific threats were made. If it accepted that the incident occurred and specific threats were made, the Authority would have had to consider whether it supported other aspects of the appellant’s claims, including his claim to have been a member of a particular social group of witnesses to atrocity crimes; and

(d)    The FCCA Judge strayed into merits review when he found that the Authority’s consideration of the father’s letter could not have made a difference to the outcome of the review.

Minister’s submissions

60    The Minister confirmed that he accepted that the Authority did not consider whether the father’s letter was credible personal information that, had it been known, might have affected consideration of the appellants’ claims and that the letter, on its face, was “not incapable” of meeting that description: cf AUS17 v Minister for Immigration and Border Protection [2020] FCA 37; (2020) 384 ALR 196 (AUS17) at [18].

61    The Minister submitted that, fairly read, the father’s letter said nothing more than that:

(a)    BTJ17 and BTK17 joined their father “for Sri Lanka election period to UNP supporter’;

(b)    “If they were working election activities, they were threatening by unknown arms group”;

(c)    On a specified date in 2012, the family home was visited by “unknown persons”;

(d)    Unknown people came and harassed him continuously after the appellants left for Australia; and

(e)    On 12 September 2016 “they” came and asked the father about the appellants and threatened to shoot them if they come to the village.

62    The Minister submitted that, as found by the FCCA Judge (at J[28]-[29]), the information relayed by the father’s letter was before the Authority from other sources, albeit that there was not an “exact mirroring” of the information. The Authority considered and accepted:

(a)    BTJ17’s claims that his father was involved in the UNP and he had helped his father during an election campaign in 2006: D[16]; and

(b)    That “unknown persons” may have attended the family home but it did not accept that those persons were from EPDP, that they were searching for BTJ17 or that they threatened BTK17: D[37].

63    The Minister submitted that:

(a)    Any insinuation as to the identity of unknown persons or why they came to the father’s house was a matter for the Authority and it could not have been aided by the contents of the father’s letter. The father did not, and apparently was not able to, identify the persons who made threats against BTJ17 and his family in September 2016 or why they did so;

(b)    Any claim advanced that the authorities, paramilitary or political groups continued to look for the appellants was addressed and subsumed in the Authority’s findings at D[29] and [37]; and

(c)    This matter is to be contrasted with the facts in AJN19. The approach in AJN19 at [36] (statement of principles) and [45]-[48] and in this case at J[26]-[31] is the same. The relevant difference is that in BTJ17’s case, the Authority accepted the factual contentions that were advanced in the father’s letter, whereas in AJN19, the new information that was not considered contained information that was at least potentially connected with adverse findings made by the Authority (see AJN19 at [46]).

Consideration

64    As the FCCA Judge found at J[26], for a breach of s 473DD of the Migration Act to constitute jurisdictional error on the part of the Authority, it must have given rise to “practical injustice” in the sense that proper discharge of the duty imposed by s 473DD could realistically have resulted in a different outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [38]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[31]. As noted by Abraham J in AJN19 at [36], that is a question of fact: SZMTA at [4], [45]-[47]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (MZAPC) at [1]-[4], [38]-[39]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the Court that the decision could realistically have been different had the breach not occurred lies with the appellant: MZAPC at [39], [60]. Accordingly, there is no apparent difference in the understanding of the FCCA Judge and Abraham J as to the principles to be applied in determining whether a breach of a duty imposed on a decision-maker is of such materiality as to sound in jurisdictional error. Having said that, there is considerable factual difference in the cases. All such cases must be decided on their own facts and I do not find it productive to engage in analysis having regard to factual comparison.

65    I do not accept the appellant’s submission that the FCCA Judge engaged by undertaking merits review. Rather, in my view, the FCCA Judge carefully undertook the task required by the authorities of seeking to discern if there was any issue raised or evidence given in the father’s letter which might affect the Authority’s decision-making so as, realistically, to produce a different outcome: see SZMTA at [48]. In order to do that, it was necessary for the FCCA Judge to undertake the examination of the claims made in the material before the Authority and how the Authority addressed that material set out at J[28]-[31] so as to reach the conclusion that his Honour did at J[32].

66    As accepted by the Minister and the FCCA Judge, the father’s letter does not exactly mirror the information before the Authority. I do not regard the FCCA Judge as having erred in finding that a difference, such as the specification of a date (12 September 2016) in the father’s letter as a date when unknown persons visited his home and made threats, was not material in circumstances where the evidence given by BTJ17 and BTK17 on 6 May 2016 was to the effect that they departed Sri Lanka in 2012 and enquiries were still being made at the homes of BTJ17’s father and BTL17’s parents as to their whereabouts.

67    On the basis of the information before it, the Authority was not able to determine the identity or motivation of those visitors sufficient to found a claim that they were authorities, paramilitary groups or political groups continuing to seek BTJ17. The father’s letter did not contain any additional information regarding the identity or motivation of the visitors, referring repeatedly to “unknown peoples”.

68    Mr Taylor submitted that there is a material difference between the nature of the claims made by BTJ17 and BTK17 in their May 2016 statements at [85] and [45] respectively (see [59(b)] above) and the evidence of threats to shoot BTJ17 and his family if they return to the village in Sri Lanka made on 12 September 2016 referred to in the father’s letter.

69    I am not satisfied that the claims made in the father’s letter and in the May 2016 statements of BTJ17 and BTK17 at [85] and [45] respectively are materially different because in the May 2016 statements, both [85] and [45] appear under the heading “Future fears” with paragraphs which state (among other things):

If I am forced to return to Sri Lanka I fear that I will be subjected to serious harm. I fear being kidnapped, arrested, tortured and killed.

I am afraid of the Sri Lankan authorities because they have targeted me in the past.

I am also afraid of being targeted by the EPDP and paramilitary because of my previous political involvement.

I fear being targeted because I am a Hindu. In Jaffna, the Singhalese are currently replacing the Hindu temples with Buddhist temples. They are preventing Hindus from practicing [sic] their religion. People are being arrested because they are Hindu.

I also fear that because it is known that I have tried to seek asylum in Australia the authorities will assume because I am Tamil that I was a supporter of the LTTE and harm me because of this.

I also worry that it is not easy to move areas in Sri Lanka. You must register with the police station in each new area. Because I have been harassed and detained by the army in the past I fear that my record will be used by the authorities in any new area as a reason to arrest and torture me.

70    As the father’s letter was unable to identify who was making the threats and why, it did not advance the claims made by the appellants in that regard. Further, I do not accept the contention that the letter is corroborative of BTJ17’s claim that he remained of adverse interest to authorities because of what he saw at the army camp. There is nothing in the father’s letter which suggests that is the basis for the threats made on 12 September 2016. The father’s letter appears to be coming from a perspective of political opinion based threat – otherwise the mention of his UNP membership is redundant. If there were concerns based on the things witnessed by BTJ17 at the army camp, one would have expected that to be mentioned, having regard to BTJ17’s evidence in his May 2016 statement at [43].

71    In my view, the FCCA Judge was correct to find that the information contained in the father’s letter was already before the Authority from other sources and addressed at D[29] and [37], and with respect to interest by the SLA at DR[24]-[26], and that the information in the father’s letter could not have materially affected the Authority’s decision.

72    The first ground is not made out.

Disposition

73    The appeal should be dismissed with costs.

Associate:

Dated:    12 January 2023