Federal Court of Australia

AXV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 121

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

NICHOLAS J:

Background

1    This is an appeal from the judgment of the Federal Circuit Court (as it then was) dismissing the appellant’s application for judicial review of a decision of the second respondent (“the Authority”). By its decision, the Authority affirmed a decision of the delegate of the first respondent (“the Minister”) not to grant the appellant a Safe Haven Enterprise (Subclass 790) Visa (“SHEV”).

2    The appellant is a citizen of Sri Lanka who arrived in Australia in November 2012. He is a Tamil of Hindu religion. He applied for a SHEV on 28 June 2016 claiming to fear serious harm if he returned to Sri Lanka on the basis of his Tamil ethnicity, his imputed support or affiliation with the Liberation Tigers of Tamil Eelam (“LTTE”), his sister’s membership of the LTTE, his participation in a protest against the “grease men”, his illegal departure from Sri Lanka, and his status as a failed asylum seeker.

3    The appellant attended an interview with the delegate on 13 December 2016 with the assistance of a Tamil interpreter. On 23 December 2016 the delegate refused the appellant’s application for a SHEV. The appellant’s application was then referred to the Authority for review under s 473CA of the Migration Act 1958 (Cth) (“the Act”).

4    On 25 January 2017 the appellant sent the Authority various documents relating to his application. These documents included a written statement, a written submission, a statutory declaration, and a letter from the Tamil Refugee’s Association (“the TRA”).

5    On 16 February 2017 the Authority affirmed the delegate’s decision.

6    The appellant’s application for judicial review of the Authority’s decision was dismissed by the primary judge on 5 November 2019.

The Notice of Appeal

7    The appellant’s notice of appeal includes seven grounds. However, counsel for the appellant did not press grounds 2, 5 and 6. The remaining grounds of appeal, including the particulars given, are as follows:

1.    The Federal Circuit Court … failed to hold that the Immigration Assessment Authority (hereinafter referred as “the Authority”) fell into jurisdictional error of legal unreasonableness.

    Particulars

a.    The Authority must not impose arbitrary standards of conduct on or in relation to the applicant (See: BWC16 v Minister for Home Affairs [2018] FCA 1375 at [59] per Thawley J [sic];

b.    The Authority found at [paragraph 25] of its decision that it did not accept the applicant had been Secretary to the Rural Development Society in his village;

c.    The basis for the Authority’s finding was that when questioned as to the role of the Secretary, the applicant's response was basic;

d.    The Authority arbitrarily rejected the applicant’s standard of knowledge in relation to the role of Secretary without identifying what knowledge of the role the applicant would properly have in the circumstances.

…

3.    The Federal Circuit Court … failed to hold that the [sic] following the decision of the Minister's dated 23 December 2016, the applicant provided further information to the Authority, some of which was “new information” within the meaning of s 473DD of the Migration Act 1958 (Cth) (Act).

    Particulars

a.    The Authority in considering s 473DD of the Migration Act 1958 (Act) found at [paragraph 8] of its decision that it was “not satisfied that any exceptional circumstances exist that justify considering the new information” and at [paragraph 11] that “there are no exceptional circumstances that warrant the IAA having regard to the new information regarding liaison with the LTTE”.

b.    The Authority in making these findings, misconstrued s 473DD in a manner which involved jurisdictional error.

4.    The applicant claimed a fear of persecution by Buddhist monks at [paragraphs 2 and 3] of his submission to the Authority and at [paragraph 15] of his Statutory Declaration.

    Particulars

a.    The Authority failed to address this claim adequately or focussed on this claim of fear of harm but only continued to focus on fear of harm by the Sri Lankan Authorities;

b.    The Authority did not address this claim about fear of harm by the Buddhist monks in its complementary protection assessment;

c.    Where the applicant makes a clearly articulated claim and the decision-maker does not deal with the claim, this is a jurisdictional error (See NABE v Minister (2004) 144 FCR 1).

d.    The Federal Circuit Court … failed to hold that this was a jurisdictional error.

…

7.    The Federal Circuit Court … would have held that the Authority has overlooked considering matters into the reasonably foreseeable future in a manner which constitutes jurisdictional error.

    Particulars

a.    The political and security situation in Sri Lanka has been fluid over the last 10 years. Where the political and security situation in a country is fluid, it is important for the decision-maker to consider the situation for the applicant into the reasonably foreseeable future on his or her return to the receiving country.

b.    Where a decision-maker fails to refer to a matter in its reasons for decision, it is open to a court on a judicial review application to find that the decision-maker overlooked the issue in a manner constituting jurisdictional error. For example, in Minister v Yusuf (2001) 206 CLR 323 at [69]. See also Kalala v Minister (2001) 114 FCR 212 at [23].

c.    Scrutiny enables the courts to supervise the work of Tribunals and ensure they act according to law. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 at 388 [86].

d.    The relevant question is whether the applicant has a present fear of a risk of harm in the reasonable future. A past lack of fear or trepidation is not necessarily inconsistent with well-founded fear of future harm. See: SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].

The Delegate’s Decision

8    The delegate summarised the appellant’s claims. These included the appellant’s claim that, in August 2010, he became the Secretary of the local Rural Development Society (“RDS”) of his village which was one of five villages that held a mass protest on 16 August 2011, involving approximately 1,000 villagers protesting against the “grease men” (or “grease man”) attacks. The appellant claimed that, in his capacity as an executive member of the local RDS, he helped to arrange the protest. The appellant claimed that at the end of the protest he escorted women and children back to their homes and was photographed by officials monitoring the protest. The delegate’s summary makes no mention of Buddhist monks.

9    The delegate accepted that the appellant was from the Eastern Province of Sri Lanka, a region overwhelmingly populated by ethnic Tamils. The delegate accepted that the appellant had been harassed and beaten on several occasions by the SLA due to suspicion of LTTE involvement between 1994 and 1996. The delegate also accepted that the appellant travelled to Saudi Arabia to avoid the general violence in Sri Lanka during the war between 2000-2005 and 2005-2008.

10    In relation to the appellant’s role with the local RDS, the delegate found:

The applicant has consistently claimed that he was the Secretary of the local RDS from 2010 up until his departure from Sri Lanka in 2012. When asked to describe his role and responsibilities at the PV interview, the applicant responded that he was required to report issues faced by the village to the RDS office and find solutions. The applicant was asked why he decided to join the RDS to which he responded that it was not his personal wish but he was elected by the people.

11    The delegate then referred to the appellant’s claims concerning “grease men” attacks and referred to country information in relation to the “grease men” phenomenon which showed that such attacks did occur but were rarely prosecuted by authorities (by which I understand the delegate to mean that the perpetrators were rarely prosecuted by the authorities). The delegate referred to the appellant’s claim that in August 2011 a total of five villages, including his village, held a mass protest in an attempt to stop the “grease men” attacks and that, when asked at his interview what his role was in the protest, the appellant responded, according to the delegate, “… that he had to function as a responsible person as he was the Secretary of the RDS”.

12    With respect to the “grease men” attacks and his involvement in the protest, the delegate concluded:

Based on the country information before me and the applicant’s forthcoming testimony, I accept that the applicant participated in a protest against the “grease man” in August 2011. I also accept that the protest was being photographed and filmed by the Sri Lankan authorities which included footage of the applicant. However, whilst I accept the applicant may have held the title of “Secretary” in the local RDS, given his responses at the PV interview, I am not satisfied and therefore do not accept that the applicant played a leading role in the protest that would distinguish him from the other protesters.

The Authority’s decision

13    The appellant’s matter was referred to the Authority on 6 January 2017. On 25 January 2017 the appellant sent various documents to the Authority, including a written submission and a statutory declaration, both dated 25 January 2017, together with a letter from the TRA dated 23 January 2017 which attached a table referencing country information and various web addresses at which such information could be accessed.

14    In his statutory declaration, the appellant stated that he was suffering from Post-Traumatic Stress Disorder during his interview with the delegate. The appellant also stated at [15]:

Bodu Bala Sena (BBM) a militant Buddhist Monks Force (aka Buddhist Power Force) after the war officially ended in 2009 in Sri Lanka, started a campaign of violence erecting Buddhist Stupas (statues) and shrines, demolishing existing Hindu temples and shrines, attacks on Hindus, Christians and Muslims and claims that they have the support of the Sri Lankan Armed Forces and the police.

15    The Authority referred to the materials submitted by the appellant on 25 January 2017. The Authority stated at [5]-[8]:

5.    The submission seeks to advance new claims and new country information. The IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.

6.    The applicant stated that due to his role with the Rural Development Society (RDS) he was involved in the civil administration of his village which required him to liaise with the LTTE. He contends that although the war between the Sri Lankan army and the LTTE came to an end in the Vanni district, the influence and control of the LTTE remained in the western part of the Batticaloa lagoon until the end of 2011.

7.    The delegate advised the applicant at his SHEV interview of the importance of putting his claims forward and cautioned that he may not have a further opportunity to do so. The delegate advised the applicant that the IAA can only accept new information in exceptional circumstances. I note the delegate asked the applicant at the beginning of the interview if there was any information in his SHEV application that he wished to change or update and that the applicant took the opportunity to provide updated contact details but did not seek to provide information about this claimed involvement with the LTTE.

8.    The applicant contends that he was suffering Post Traumatic Stress Disorder (PTSD) during the SHEV interview and that he did not divulge this information earlier as he was concerned his application would be refused, or that the information could be given to the authorities in Sri Lanka, and he was concerned about the data breach by the Department of Immigration and Border Protection. However, I note that at the end of his SHEV interview the applicant was willing to put forward claims he had not made in his SHEV application about his sister’s short term association with the LTTE, sending money from Saudi Arabia to the LTTE in Sri Lanka through his bank account, and claims to fear harm from paramilitary groups. I note that the claimed PTSD and fear of having his application refused or information passed to Sri Lanka [sic] authorities did not prevent the applicant putting forwarding these sensitive claims at his SHEV interview. I am not satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.

16    At [15] of the Authority’s reasons, the Authority referred to the appellant’s claims as found in the information referred to it pursuant to s 473CB of the Act and as “… subsequently given to the IAA”. The Authority then summarised the appellant’s claims.

17    At [15] (last bullet point) of the Authority’s reasons, the Authority stated:

The applicant fears that Tamils have no rights and Sinhalese people and Buddhist monks are able to act with impunity in mistreating Tamils. At his SHEV interview he cited accounts of torture and mistreatment of Tamils and showed the delegate multi-media clips on his telephone. He fears he has been imputed as having links to the LTTE and he will be followed by the authorities after leaving the airport in Sri Lanka and harmed.

18    At [15] (sixth bullet point) of the Authority’s reasons, the Authority also noted that the appellant made the following claim:

The applicant became the Secretary of the RDS in his village in August 2010. There were many issues in the village due to the war, such as damage to roads, schools and houses and his role was to takes issues in the village and find solutions.

19    As to the appellant’s contention that he was suffering PTSD during his interview with the delegate, it is apparent that the Authority took this information into account. The Authority said at [22]:

22.    There is no clinical diagnosis of PTSD in the applicant’s case, however I take into account the claim that the applicant has PTSD and the comments in the written submission regarding the importance of assessing credibility of past and present events. I take into account that the events that constitute the applicant’s claims occurred over four years ago and due to the passage of time his recall of dates and events may not be accurate. However, even allowing for this, I would expect the basic account of events to be broadly consistent across the versions the applicant has provided to the department, particularly where they relate to serious and grave incidents such as his sister’s recruitment by the LTTE, the LTTE using his account to send money from overseas, and the greasemen protest and subsequent harassment. The applicant’s account in part lacks internal consistency and plausibility which brings the veracity of some of his claims into doubt.

20    The Authority did not accept that the appellant was the Secretary of the RDS in his village, that he had witnessed any “grease men” attacks, or that he was involved in the organisation of the protest. The Authority stated at [25]-[27]:

25.    Nor do I accept that the applicant was the Secretary [sic] the RDS in his village. At his SHEV interview the applicant was asked to describe this role and his response was basic; he stated that he took issues and referred them to the Development Society office. He referred to war damaged infrastructure in the village and that to fix this he had to take steps and to find solutions. He stated that the society met maybe monthly or three-monthly or when there were problems they had a meeting. When asked why he joined his response was that he was elected by the village.

26.    I accept that during 2010/2011 greasemen terrorised Tamils in attacks on rural villages and that the police and other authorities were not responsive to complaints about these attacks. I have carefully reviewed the applicant’s evidence about greasemen attacks in his own village and the subsequent protest and I have had regard to the media article submitted. I note the applicant stated that he had witnessed greasemen atrocities. However I am not convinced he did witness atrocities or any greasemen attacks, or that he was involved in the organisation of the protest. At his SHEV interview, when asked about the greasemen attacks in his village, the applicant responded in general terms about the origin of the greasemen, the widespread belief that they were linked to the military, the lack of response from law enforcement agencies to complaints and he provided non-specific information on the types of attack the greasemen perpetrated. The applicant’s response was not specific to actual events in his village or to people from his village but cited broad information about greasemen attacks that was common knowledge from contemporary media reporting. I am not convinced that he was providing information from his own personal experience of fellow villagers who were accosted by greasemen.

27.    However, noting that the greasemen phase was pervasive at the time and that Tamils were critical of the lack of response from the authorities, I accept that there was a protest meeting involving the applicant’s village and that the applicant attended this meeting. I accept that he appears in the photograph published in the Tamil media article he provided at his SHEV interview. I do not accept that the applicant was involved in the organisation of this protest. When asked to explain at his SHEV interview how he was involved he responded his role was as the Secretary to the RDS and that five villages joined together for the protest. The applicant did not provide any further information on the logistics involved in organising this event despite his evidence that 1000 villagers attended this event which would have required some planning and organisation.

21    The Authority referred expressly to the mistreatment of Tamils by Buddhist monks. The Authority stated at [37]:

37.    I accept that as a Tamil the applicant has a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lanka [sic] authorities. I have noted his comments about militant Buddhist monks seeking to spread the influence of Buddhism since the end of the war and I accept that radical Buddhist groups have harassed and violently attacked the minority Hindus and Muslims on occasions, and I accept that law enforcement agencies were not responsive to complaints from the Tamil population about greasemen attacks in 2010/2011. I note his concern that the Sri Lankan authorities view Tamils with suspicion and with being linked to the LTTE and I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, and the recent reports from Freedom From Torture and the International Truth & Justice Project are amongst those that detail claimed abuses. However, I find that country information does not support this fear as being well-founded.

22    After considering various other claims raised by the appellant, the Authority concluded that the appellant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and therefore did not meet the requirements of s 36(2)(a) of the Act. The Authority also concluded that the appellant did not meet the requirements of s 36(2)(aa) of the Act.

The primary judge’s decision

23    It is convenient to refer to the primary judge’s reasons by reference to the grounds of appeal relied on in this Court.

24    The subject matter of ground 1 was dealt with by the primary judge at [101]-[109] of his Honour’s reasons. His Honour referred to the appellant’s reliance on BWC16 v Minister for Home Affairs [2018] FCA 1375 (“BWC16”) at [59] which his Honour distinguished on the basis it was a case concerned with what he referred to as a fundamental error of fact on the part of the decision-maker in that case. His Honour found that in the present case there was no error of fact and that the Authority’s rejection of the appellant’s claim to have been Secretary of the RDS was reasonably open on the material before it. His Honour was of the view that the finding made was based on probative evidence and supported by intelligible reasons. He therefore rejected this ground.

25    The subject matter of ground 3 in the appeal was dealt with by the primary judge at [34]-[58] of his Honour’s reasons. Having referred to s 473DD of the Act, the decision of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 and various decisions of the Full Court of the Federal Court, his Honour concluded that the Authority did not misconstrue or misapply s 473DD of the Act. His Honour observed that the appellant’s submissions did not satisfactorily explain how the Authority misconstrued or misapplied s 473DD, that they were selective in their reference to authority, and that they “do not understand the proper construction of s 473DD of the Act”. His Honour said at [40]-[42]:

40.    Contrary to what is at least implicit in the applicant’s argument, s.473DD of the Act is not some statutory mechanism to enable an applicant, in the current circumstances, to give new information, or make new claims before the IAA.

41.    To the contrary, the clear statutory intention of s.473DD of the Act, or the “primary rule” to be found there, is that the IAA must consider the review material provided to it pursuant to s.473CB of the Act, but it must not accept or request new information unless the circumstances in s.473DD(a) and (b) are met. (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“M174”) per Gageler, Keane and Nettle JJ at [22]).

42.    The exceptions to the “primary” position are to be applied in the narrow circumstances dictated by s.473DD(a) and (b) (BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 (“BZC17”) per Mortimer J at [52]).

26    The subject matter of ground 4 in the appeal was dealt with by the primary judge at [59]-[87] of his Honour’s reasons. His Honour noted that the appellant submitted that the Authority had failed to consider a claim made by the appellant that he feared persecution by Buddhist monks and that the Authority did not consider this claim. His Honour noted that there was no evidence to indicate that the appellant ever claimed before the delegate that he feared harm from Buddhist monks. His Honour noted the neither the appellant’s summary of his claims nor the appellant’s own written statement of claims to the delegate referred to any such fear.

27    The primary judge referred to the appellant’s written submissions to the Authority which referred to Buddhist monks. His Honour considered that the claim as made to the Authority was that the appellant feared harm from Sri Lankan authorities, in part, because they allowed Sinhalese, including Buddhist monks, to harass Tamils with impunity. His Honour noted this was consistent with the claims advanced before the delegate which included a claim to fear harm as a Tamil from the Sri Lankan authorities. His Honour found that the Authority addressed and considered that claim.

28    Ground 7 in the appeal concerns a matter that was not raised before the primary judge. The appellant accepts that he needs leave to raise this issue in the appeal given that it was not relied on at trial and, therefore, not considered by the primary judge.

The Relevant STATUTORY PROVISIONS

29    The nature of the jurisdiction exercised by the Authority was considered in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439. As the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) explained at [5]-[9]:

[5]    The nature of the jurisdiction exercised by the Authority when conducting a review of a fast track reviewable decision is settled:

    “[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority … is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”

[6]    “Review material”, which the Secretary is obliged in every case to provide to the Authority and which the Authority is obliged in every case to consider in exercising that jurisdiction, comprises material within three categories. The first is a statement concerning the referred decision setting out the findings of fact made by the delegate, referring to the evidence on which those findings were based and giving reasons for the decision. The second is material provided by the referred applicant to the Minister before the delegate made the referred decision. The third is other material in the Secretary’s possession or control considered by the Secretary to be “relevant” to the review in the sense that it is “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”.

[7]    Conformably with the nature of the jurisdiction to be exercised by the Authority in the conduct of the review, the obligation of the Authority to “consider” the review material provided to it by the Secretary is to “examine the review material … to form and act on its own assessment of the relevance of that material to the review of the referred decision”.

[8]    The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

[9]    “New information”, which the Authority can only get and consider in the exercise of its specific powers, comprises any communication of “knowledge of facts or circumstances relating to material or documentation of an evidentiary nature” which was not before the Minister when the delegate made the referred decision that the Authority itself considers might be relevant to the review in the sense that it might be capable directly or indirectly of rationally affecting assessment by the Authority of the probability of the existence of some fact about which the Authority might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.

(footnotes omitted)

30    Sections 473DC and 473DD of the Migration Act 1958 (Cth) (“the Act”) concern the power of the Authority to “get” and consider new information. These sections provide:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)     the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD    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.

Consideration

Ground 1

31    The appellant submitted that the Authority’s decision was legally unreasonable because it imposed arbitrary standards of conduct in relation to the appellant when not accepting that the appellant was the Secretary of the RDS. As is apparent from the appellant’s grounds of appeal, he relied in support of ground 1 on a decision of Thawley J in BWC16.

32    In my opinion, BWC16 does not assist the appellant. In that case the Authority concluded that the appellant’s claim to membership of a political party was not credible and that a letter purporting to be from the party confirming the appellant’s membership should be given little or no weight. One matter which led the Authority to so conclude was that the appellant stated that he did not know when the relevant party was formed and that he was unaware of its history. His Honour concluded that the appellant at no point stated that he was unaware of the party’s history and that there was no evidence before the Authority reasonably capable of supporting a finding that the appellant was unaware of the party’s history. His Honour also drew attention to other deficiencies in the Authority’s reasoning. He found that the Authority’s adverse assessment of the appellant’s credit in that case was arbitrary and illogical.

33    In the present case the appellant submitted that there was an arbitrariness and illogicality in the Authority’s approach to the question whether the appellant was the Secretary of the RDS. The appellant focused on [25] of the Authority’s reasons in which the Authority said that the appellant’s response to the delegate when asked to describe his role was “basic”. The appellant submitted that the word “basic” in this context is unclear, that it may mean that the Authority was referring to the simple language in which the appellant responded, or to the brevity of his response. The appellant submitted that the Authority had not explained how a response to the relevant question which it characterised as “basic” justified a finding that the evidence should not be accepted.

34    It was a matter for the Authority to assess on the material before it whether it was satisfied as to the correctness of the appellant’s claims including his claims to have been the Secretary of the RDS. Contrary to the appellant’s submissions, I do not think the Authority acted arbitrarily or illogically by applying some “standard of knowledge” that a Secretary of an RDS is expected to demonstrate. Rather, on a fair reading of its reasons, the Authority considered his description of his role as vague and lacking in detail. It is in this sense I think the Authority has used the word “basic” when describing the appellant’s response.

35    In assessing the reasonableness of the Authority’s reasoning, it should be noted that the appellant claimed to have assisted in the organisation of the protest in his role as Secretary of the RDS. The Authority drew attention to the limited information provided by the appellant in his interview as to the logistics involved in organising the protest. Although the Authority accepted that the appellant attended the protest, it did not accept that he was involved in its organisation. Nor did the Authority accept that the appellant had witnessed atrocities or attacks perpetrated by grease men given the “non-specific” information provided by him concerning the types of attacks perpetrated. The Authority’s assessment of the appellant’s evidence on these matters must be read as a whole. When read in the context of the related findings to which I have referred, I do not consider that the Authority’s rejection of the appellant’s evidence that he was Secretary of the RDS can be characterised as legally unreasonable.

36    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness:

… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power…

37    Minds might differ as to whether the generality of the answers given by the appellant to the Authority should have led it to not accept that he was in fact the Secretary of the RDS for his village. But that in itself is not sufficient to justify a finding that the Authority’s reasoning was illogical, arbitrary or lacking any evident intelligible justification. In my view the primary judge’s decision on this point was correct.

Ground 3

38    The appellant submitted that the Authority’s approach to the matter of “new information” was erroneous in that the Authority failed to first assess new information against the criteria specified in both s 473DD(b)(i) and (ii). In particular, it was submitted that the Authority failed to address the question whether the new information was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”.

39    In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (“AUS17”) the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) said at [11]-[12]:

[11]    Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

[12]    The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

(footnotes omitted)

40    The Minister in his submissions accepted that the Authority was required to assess the new information in accordance with AUS17 and that, at least in respect of some of the new information provided by the appellant, the Authority failed to do so. However, the Minister submitted that the relevant error was not material to the Authority’s decision, and could not have affected the outcome of the review.

41    The appellant dealt with the issue of materiality in [17] and [19] of his written submissions. The appellant submitted:

17.    If the IAA had first assessed the new information against the criteria in s 473DD(b)(ii), a question may have arisen as to whether the new information was “credible”. In the appellant’s favour, it is relevant that (a) he claimed that he “was the secretary of the Rural Development Society” from the time of his arrival interview shortly after he arrived in Australian waters in November 2012, (b) the appellant was able to explain his role and responsibilities as the secretary of the RDS during his protection visa interview (in contrast to a situation if he was unable to provide any answer to this question by the delegate), (c) the Minister’s delegate accepted that the appellant was the secretary of the RDS, (d) there was some evidence before the IAA that the appellant suffered from PTSD which the IAA accepted, (e) the Minister’s delegate and the IAA (to a lesser extent) accepted some other claims of the appellant and neither decision-maker made a general adverse credibility finding against the appellant. While none of these matters corroborate the LTTE Liaison Claim, if the IAA had turned its mind to whether the new information was “credible”, the IAA may have concluded “yes”, despite the fact that the appellant did not advance the LTTE Liaison Claim before the delegate.

…    

19.    It follows that, subject to the question of materiality, the IAA committed a jurisdictional error. In relation to materiality, the question is “whether there is a realistic possibility that [the IAA’s] decision could have been different” if the decision-maker had not made the error it made. The answer is “yes”. Among other reasons, the IAA did not accept that the appellant was the secretary of the RDS in his village because “his response was basic”. If the IAA had had regard to the additional explanation by the appellant of his role in hew [sic] information, the IAA may have accepted that the appellant was the secretary of the RDS.

(citations omitted)

42    In those paragraphs of his submissions the appellant refers to the “LTTE Liaison Claim”. This is a reference to information contained in [10] of his statutory declaration in which he refers to his “… connections with the LTTE as a person involved in the civil administration in our village [who] liaises with the regional political Division of the LTTE and [who was] subsequently appointed as the Secretary of the Rural Development Society …”. In essence, the appellant submitted that this information was material because, had it been considered by the Authority, the Authority may have accepted that the appellant was the Secretary of the RDS.

43    The nature of the inquiry into the materiality of a failure by a decision-maker, the Authority, to comply with its statutory obligations was considered by the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590. In MZAPC Kiefel CJ, Gageler, Keane and Gleeson JJ said at [38]-[39]:

[38]    The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

[39]    Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(Citations omitted. Original emphasis.)

44    The question therefore is whether the relevant breach of the Authority’s statutory obligation gave rise to a realistic possibility that a different decision could have been made had there been no such breach. In addressing that question it is necessary to give close attention to the reasons given by the Authority for rejecting the appellant’s claim to be the Secretary of the RDS.

45    The difficulty with the appellant’s submission is that the new information was extremely vague, and provided little if any additional information as to the appellant’s role as the Secretary of the RDS beyond asserting an involvement in civil administration which involved liaising with a political division of the LTTE. The Authority rejected the appellant’s claim that he was Secretary of the RDS due to (inter alia) his inability to describe his role in any detail. The new information did not provide any meaningful detail as to his role including, in particular, what he did in the course of “liaising with the political division of the LTTE”. Even if it is assumed for the purpose of the counterfactual analysis that the Authority received and considered the new information, I do not think that there could be any realistic prospect that it could have filled the information void that led the Authority to reject the relevant claim or that there was any realistic possibility that the outcome of the review could have been different. I am therefore not persuaded that the error in the Authority’s application of s 473DD was a jurisdictional error.

Ground 4

46    It was common ground that the Authority was required to review the appellant’s claims and that a failure to do so would (subject to any issue of materiality) amount to a jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] (“Htun”).

47    In support of his submissions directed to ground 4 the appellant referred to the Full Court decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. Having referred to the judgment of Allsop J (as his Honour then was) in Htun, the Full Court of the Federal Court considered a situation in which a claim, while not expressly articulated by an applicant, arose on the material before the decision-maker. The Full Court of the Federal Court said at [58]:

[58]    The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

48    The appellant referred to [15] of the Authority’s reasons in which it stated that “the applicant fears that Tamils have no rights and that Sinhalese people and Buddhist monks are able to act with impunity in mistreating Tamils”. The appellant submitted that this claim was different from the claim that the appellant would suffer harm at the hands of the Sri Lankan authorities. In the appellant’s written submissions, he submitted that what he referred to as “the Buddhist Monks Claim involved a risk of mistreatment by the Buddhist monks, with the Sri Lankan authorities refusing to offer state protection”. The appellant submitted that in its consideration of the appellant’s claim that he would suffer mistreatment at the hands of the Sri Lankan authorities, the Authority did not address the appellant’s claim that he may suffer harm at the hands of Buddhist monks.

49    I have previously extracted [37] of the Authority’s reasons. That paragraph makes clear that the Authority accepted that radical Buddhist groups have harassed and violently attacked minority Hindu and Muslims on occasions. However, on balance, I am not persuaded that [15] of the appellant’s statutory declaration, or the written to submission to which I have referred, when read in context, was a claim that was separate from, or independent of, his claim to fear harm. Paragraph 15 of the statutory declaration appears in the middle of a broader discussion concerning the position of Tamils in Sri Lanka, their harassment by the armed forces and police, and the reluctance of the Sri Lankan authorities to investigate or charge army or police officers who have committed crimes against Tamils. In my opinion, when read in context, the reference to Buddhist monks was an aspect of the appellant’s claim that he feared harm from groups whose criminal activities were encouraged or tolerated by Sri Lankan authorities.

50    As the primary judge observed, there is no evidence to indicate that the appellant made any claim that he feared harm at the hands of Buddhist monks before the delegate. Nor is there any suggestion in the appellant’s submissions to the Authority that he was advancing new claims different from those advanced before the delegate. It is in that context that I think that the Authority is to be understood as having treated the information provided to it in relation to Buddhist monks as relating to the claims that were before the delegate. The fear consistently expressed by the appellant throughout the material both before the delegate and the Authority was that he feared that he would suffer harm from the Sri Lankan authorities. In my opinion, any claim that the appellant feared that he may suffer harm at the hands of Buddhist monks was an aspect of that claim. A claim that the appellant feared that he would suffer harm at the hands of Buddhist monks merely because he was a Hindu or a non-Buddhist was not one that squarely arose on the material before the Authority. Nor was it a claim that the Authority was required to tease out of the material before it.

Ground 7

51    As mentioned, the appellant requires leave to raise ground 7 which, he concedes, was not relied on before the primary judge. At the hearing of the appeal, counsel for the appellant accepted there was no adequate explanation as to why the matter raised in ground 7 was not raised below. In essence, the appellant contends that the Authority impermissibly limited its consideration of the risk of harm to the appellant if returned to Sri Lanka to the time at which he would be returned and that it did not consider the position for the reasonably foreseeable future. However, the appellant accepts that there are some statements in the Authority’s reasons which indicate that it did look to the future in assessing risk of harm.

52    As the appellant submitted, the question is whether, on a fair reading of the relevant findings, the Authority considered the position of the appellant into the reasonable foreseeable future. The Authority referred to the relevant statutory provisions at [36] and [54] of its reasons.

53    Although the Authority does not in its reasons use the words “reasonably foreseeable future”, it is clear that it considered whether the appellant was at risk of harm if returned to Sri Lanka not just at the moment of his return but into the future. For example, at [41], the Authority noted that there was no reason to believe the appellant would be involved in any future protest action.

54    Importantly, the appellant’s claims did not suggest that if circumstances were to change over time if he were returned to Sri Lanka, while not at risk of harm at the moment of return, he may be at risk at some time in the reasonably foreseeable future. The absence of any express reference to “the reasonably foreseeable future” is to be understood against that background and does not disclose any misunderstanding or error by the Authority. In my opinion ground 7 has no merit. In all the circumstances, the appellant is refused leave to rely on ground 7.

Disposition

55    The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal.

Associate:

Dated:    22 February 2023