Federal Court of Australia

BLJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 460

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant is a citizen of Sri Lanka who on 13 November 2012 entered Australia by boat without a visa. He was subsequently permitted to apply for a protection visa and did so on 29 August 2016. His visa application was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection. That decision was referred to the Immigration Assessment Authority for review. The Authority affirmed the Minister’s decision. The appellant subsequently challenged the Authority’s decision in judicial review proceedings commenced in then then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia). That application was dismissed on 11 November 2019: BLJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3237 (J). The appellant appealed to this Court from the dismissal of his application.

2    The appeal raises two substantive issues.

3    The first question is whether the Authority failed to consider guidelines published by the United Nations in 2012 in respect of the assessment of asylum seekers from Sri Lanka. The appellant contended that the Authority failed to consider, or correctly consider, certain parts of the guidelines. The primary judge rejected that contention. The question is whether the primary judge erred in so doing.

4    The second question was not the subject of an appeal ground. It was raised by the Minister in discharge of his model litigant obligations. The question is whether the Authority erred in declining to consider certain “new information” on the basis that it failed to meet the requirements of s 473DD of the Migration Act 1958 (Cth).

5    For the reasons that follow, the answers to both questions are adverse to the appellant and his appeal must be dismissed.

VISA APPLICATION AND REFUSAL BY THE DELEGATE

6    An applicant for a protection visa must meet at least one of two key criteria. The first, in summary, is that the Minister is satisfied that Australia owes the applicant protection obligations because they are a refugee, which means that they have a well-founded fear of persecution in their country of nationality (or country of his or her former habitual residence) for reasons of race, religion, nationality, membership of a particular social group or political opinion: ss 36(2)(a), 5H and 5J of the Act (the refugee criterion). The second is that the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their country of nationality or former habitual residence, there is a real risk that they will suffer significant harm (s 36(2)(aa) of the Act) (the complementary protection criterion).

7    In order to satisfy one or other of those criteria, a protection visa application must ordinarily identify the factual claims that underlie their general claim that they have a well-founded fear of persecution, or that there is a real risk that they will suffer significant harm if returned to their country of nationality or place of former habitual residence.

8    The appellant claimed, in summary, that he feared that he would be persecuted, or suffer significant harm, in Sri Lanka due to his past association with the Liberation Tigers of Tamil Eelam (LTTE), a militant Tamil group which had fought for a separate Tamil state in Sri Lanka. He claimed that he had been forcibly recruited and trained by the LTTE when he was a young man. He initially claimed that he was an LTTE “cadre” who had participated in armed conflict with the Sri Lankan army, however, when interviewed by the delegate, the appellant denied that he had actually been involved in combat. As will be seen, his claim changed again when it came to the Authority’s review.

9    The appellant claimed that in late 1999 he ran away from the LTTE and surrendered to the Sri Lankan police. He was then interrogated and tortured by the Criminal Investigation Department. He was later detained at a youth rehabilitation and training centre and, upon his release in March 2000, was required to regularly report to the Sri Lankan army. When he did so, he was frequently beaten.

10    The appellant fled to Qatar in 2006, but returned to Sri Lanka in 2009. When he returned, certain groups (the Karuna and Pillayan groups), who had joined the Sri Lankan army, sought to recruit him as a former LTTE cadre, so he fled to Saudi Arabia. He returned to Sri Lanka in December 2011. Back in Sri Lanka, he supported the United National Party in provincial council elections, which, in turn, angered the Karuna and Pillayan groups.

11    The appellant said that he feared harm from the Sri Lankan authorities because he is a former LTTE cadre, because he did not join the Karuna and Pillayan groups and because he did not comply with his reporting conditions.

12    The delegate accepted many of the appellant’s factual claims, but nonetheless was not satisfied that he met either the refugee criterion or the complementary protection criterion. The delegate relevantly found that the appellant did not claim to have had any “high level involvement” with the LTTE and that accordingly the chance that he would be “seen to be a threat to the state because of a real or perceived LTTE association is remote”: Protection Visa Decision Record dated 5 December 2018 (PVDR), pp 7-8. According to the delegate, the appellant did not “have a profile of interest to the Sri Lankan authorities” and that “the chance he would face serious harm because of any real or perceived links to the LTTE is remote, now or in the foreseeable future”: PVDR, p 9. As for the appellant’s other claims concerning his actual or perceived political associations, the delegate found that the appellant “did not have significant political involvement in Sri Lanka” and “that he does not have a political profile of any kind”.

13    The delegate accordingly refused the appellant’s application for a protection visa.

THE AUTHORITY’S REVIEW AND DECISION

14    The delegate’s decision was a “fast track reviewable decision” as defined in s 473BB of the Act. The Minister therefore referred the decision to the Authority as required by s 473CA of the Act and the Authority conducted a review of the decision as required by s 473CC of the Act. The Authority was required to conduct a review “on the papers”; the “papers” being the “review material” provided by the Secretary of the Minister’s department and any “new information” provided by the visa applicant, or requested by the Authority, which met certain requirements: see ss 473CB, 473DB, 473DC and 473DD of the Act.

15    The Authority affirmed the delegate’s decision not to grant the appellant a protection visa. The Authority provided lengthy and detailed reasons for its decision: Decision and Reasons dated 20 March 2019.

“New information”

16    As noted earlier, one of the issues that must be considered in this appeal is whether the Authority erred in the manner in which it dealt with certain new information which was put before it. It is therefore necessary to describe how the Authority dealt with the new information.

17    Section 473DD of the Act provides as follows:

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.

18    In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [11], Kiefel CJ, Gageler, Keane and Gordon JJ gave the following explanation of the approach the Authority must take in considering whether new information satisfies the criteria in s 473DD of the Act:

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.

19    In the appellant’s case, the Authority determined that it was able to have regard to some new information which had been provided by the appellant. That information was in a statutory declaration made by the appellant which clarified and provided additional information concerning the factual claims he had made in support of his visa application. The Authority considered that that information concerned the appellant, was capable of being believed, and “may have affected the consideration of his claims”: Reasons at [5]. The delegate was also satisfied that there were exceptional circumstances to justify the consideration of this information: Reasons at [5].

20    The Authority determined that the criteria in s 473DD were not met in respect of two further categories of new information which formed part of written submissions that the appellant had provided to the Authority. The submissions referred to a number of articles and reports authored by third parties, including the United Nations Special Rapporteur. The Authority determined, on the basis of the information supplied by the appellant concerning the articles and reports, that it was “not satisfied on the material that this new information could not have been provided before the delegate made the decision or that it is personal information in the relevant sense”: Reasons at [10].

21    The appellant’s submissions to the Authority also included a statement that “[u]pon return to Sri Lanka, the referred applicant will be subject to questioning and checks which will reveal his family association to the LTTE”. The Authority found that that information did not satisfy the criteria in s 473DD of the Act. It reasoned as follows (Reasons at [12]):

The submission also states that “Upon return to Sri Lanka, the referred applicant will be subject to questioning and checks which will reveal his family association to the LTTE”. This assertion implies that the applicant has claimed that his family has an association with the LTTE. The applicant has not previously claimed that he has any family associations to the LTTE. This information is not mentioned elsewhere within the submission nor is it referred to, or even implied, in the applicant’s statutory declaration that accompanies the submission. No other information has been provided allowing for any meaningful assessment of the information. I am not satisfied that there are exceptional circumstances to justify considering this information.

22    The question whether that reasoning exposes an error in the Authority’s application of s 473DD is considered later in these reasons.

Key findings by the Authority

23    Given the relative narrowness of the appellant’s ground of appeal, it is unnecessary to provide a detailed recitation of the Authority’s findings. The key findings were as follows.

24    First, despite expressing some concerns about inconsistencies in the appellant’s factual claims, the Authority accepted that the appellant had been forcibly recruited and trained by the LTTE, and had engaged in combat as an LTTE cadre: Reasons at [19]. The Authority also accepted that the appellant escaped the LTTE, surrendered to the police, was detained in a rehabilitation centre and, after his release from that centre in March 2000, was required to report to the Sri Lankan army for approximately six months, during which time he was subjected to mistreatment: Reasons at [26]-[27].

25    Second, the Authority rejected most of the appellant’s claims concerning the events which occurred from late 2000 up until his final departure from Sri Lanka in late 2012. In particular, the Authority did not accept that: the LTTE was searching for the appellant after he escaped from them (Reasons at [29]); or that the appellant had problems with the Karuna group between late 2000 and April 2006 (Reasons at [30]); or that the appellant went into hiding or was a “person of interest to the authorities after he ceased his reporting obligations” (Reasons at [31]); or that the appellant fled Sri Lanka to avoid forced recruitment from any paramilitary group (Reasons at [34]-[35]); or that he was significantly involved with, or provided support to, the United National Party (Reasons at [37]-[39]).

26    Third, the Authority considered that recent reports by the Department of Foreign Affairs and Trade (DFAT), the United Kingdom Home Office and the United States of America Department of State had recorded “significant improvements” in Sri Lanka since the end of the civil war. In particular, the reports indicated that the individuals who remained at risk in Sri Lanka were those “who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka” and that “LTTE membership in itself did not necessarily warrant protection either unless the person held a significant role” (Reasons at [46]).

27    Fourth, the assessment of the current situation in Sri Lanka in the DFAT, Home Office and Department of State reports was important because, as the Authority reasoned, the appellant’s “LTTE involvement was that of a low level child recruit over two decades ago” and the evidence did not indicate that the appellant “was ever perceived as a high profile LTTE member”: Reasons at [46]. The Authority concluded that, because the appellant had “no involvement in post-conflict Tamil separatism in Australia or anywhere else” and would not be “perceived as such a person”, it was not satisfied that the appellant “faces a real chance of any harm from the Sri Lankan government or anyone else in Sri Lanka in the reasonably foreseeable future”: Reasons at [49].

28    Those key factual findings led the Authority to conclude that the appellant did not have a well-founded fear of persecution in Sri Lanka (Reasons at [57]) and that there was no “real chance the [appellant] will face any serious harm” or “real risk of the [appellant] suffering significant harm on return to Sri Lanka”: Reasons at [63]. It followed that the appellant did not meet either the refugee criterion or the complementary protection criterion.

IN THE CIRCUIT COURT

29    The appellant commenced proceedings in the Circuit Court seeking prerogative relief in respect of the Authority’s decision. His application contained a single ground of judicial review, the substance of which was that the Authority committed a jurisdictional error because it failed to have regard to a report published by the United Nations High Commissioner for Refugees in 2012 entitled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” (UNHCR 2012 Guidelines).

30    The appellant contended that the UNHCR 2012 Guidelines stated that “[f]ormer LTTE combatants or ‘cadres’” may need international refugee protection. The appellant also argued that the reports that the Authority did rely on, those being the DFAT, Home Office and Department of State reports, did not state that the only persons who were at risk of significant harm were those who had participated in post-conflict separatism or renewal of hostilities, or those who would be regarded as a threat to the state. Nor did they “rule out” the appellant as a “former combatant”.

31    The primary judge rejected those contentions and rejected the appellant’s review ground.

32    The primary judge found that the UNHCR 2012 Guidelines was before both the delegate and the Authority, and that the Authority “plainly considered the terms” of that document: J[26]-[27]. His Honour reasoned, however, that the Authority also “had access to, and considered, a wide range of country information including much more recent information about the situation in Sri Lanka”, as compared with the UNHCR 2012 Guidelines: J[27]. His Honour concluded that it was “open to the Authority to conclude, notwithstanding the UNHCR 2012 Guidelines, that more recent developments in Sri Lanka had reduced the risk to a point where the [appellant] did not face a well-founded risk of persecution or significant harm”: J[26].

33    The primary judge also found that the appellant’s review ground was misconceived for a number of reasons.

34    First, the UNHCR 2012 Guidelines merely contained guidelines. It did not “purport to set out a definitive position” and the guidelines were “not to be read as hard, inflexible, categories to be applied as a form of checklist or requirement”: J[28]. The UNHCR 2012 Guidelines also “set out the position as at 21 December 2012 and should be read accordingly, particularly bearing in mind the later country information available to” the Authority: J[28].

35    Second, the appellant’s challenge to the Authority’s decision was, in essence, a challenge to the Authority’s assessment of the evidence and findings of fact. The fact that the Authority may not have specifically referred to particular evidence – in this case, one particular part of the UNHCR 2012 Guidelines – did not bespeak error, let alone jurisdictional error, on the part of the Authority. The assessment of the weight to be given to “country information” was “a matter within the purview of the fact-finding functions of the decision-maker”: J[29].

36    Third, the Authority’s reasons revealed that it “did what it was supposed to do: assess the totality of information against the [appellant’s] actual claims” and that its conclusion that the appellant did not no longer faced a real chance of harm in Sri Lanka was “entirely explicable without the need for any reference to” the UNHCR 2012 Guidelines: J[31]. The Authority was “entitled to focus on the country information that it found to be probative” and the appellant’s appeal to the “relevance” of the UNHCR 2012 Guidelines was “in reality, a plea for merits review”: J[32].

GROUNDS OF APPEAL AND SUBMISSIONS

37    The appellant’s notice of appeal indicated no more than that he continued to rely on the “grounds and particulars” contained in his application to the Circuit Court. It also suggested that the appellant relied on the submissions he made in the Circuit Court, though it would appear that those submissions did not really engage with his review ground: see J[23].

38    The appellant did not file any written submissions. He was not legally represented at the hearing. His oral submissions were directed more towards the merits of his protection visa application and did not engage with his review ground in the Circuit Court, the judgment of the primary judge, or his appeal ground.

GROUND 1 – FAILURE TO CONsider the un guidelines

39    The primary judge did not err in dismissing the appellant’s judicial review application. His Honour was right to reject the appellant’s contention that the Authority erred in the requisite jurisdictional sense by failing to take into account, or apply, the particular part of the UNHCR 2012 Guidelines that was relied on by the appellant.

40    As noted by the primary judge, it is clear that the Authority had regard to the UNHCR 2012 Guidelines. It referred to that document in its reasons as providing support for the appellant’s claims that he had been subjected to physical and sexual assaults by the Sri Lankan police after he surrendered to them in 1999: Reasons at [20]. While the Authority did not specifically refer to the particular passage of the UNHCR 2012 Guidelines that was relied on by the appellant in support of his argument in the Circuit Court, it does not follow that the Authority failed to consider, or ignored, that part of the document. The more likely inference is that the Authority considered that part of the document, but considered it to be of little, if any, relevance given the appellant’s particular circumstances and the other more recent country information that the Authority had before it.

41    The particular passage in the UNHCR 2012 Guidelines that was relied on by the appellant related to the “risk profiles” of persons who were, or may be, suspected of having links with the LTTE. After noting that “[o]riginating from an area that was previously controlled by the LTTE does not itself result in a need for international refugee protection”, the document continued:

However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2) Former LTTE combatants or “cadres”;

3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

When assessing claims of persons with the profiles above, it may, depending on the individual circumstances of the claim, be important to examine the applicability of the exclusion clauses.

42    As the primary judge noted, that was far from a definitive or conclusive statement that former LTTE combatants or cadres would attract international refugee protection. It simply indicated that “depending on the specifics of the individual case”, a person with the “profile” of a former LTTE combatant or cadre “may” need international refugee protection: J[28]. It follows that the appellant’s implicit contention that this passage of the UNHCR 2012 Guidelines effectively compelled the Authority to find that he was a refugee for the purposes of the Act has no merit and must be rejected.

43    The position is even clearer when regard is had to the fact that the UNHCR 2012 Guidelines did no more than identify the circumstances or conditions in Sri Lanka as they existed as at December 2012. The Authority had the benefit of reports that were more up to date, including: the DFAT report, which was dated 23 May 2018; the Home Office report, which was dated 15 June 2017; and the Department of State report, which was dated 20 April 2018. As the Authority stated, those reports indicated that, since the appellant had departed Sri Lanka in November 2012, there had been a number of “significant improvements” in the way in which the Sri Lankan authorities dealt with persons who had past connections with the LTTE. It is readily apparent that the Authority gave more weight to the recent reports that were before it. That, in turn, provides a compelling explanation for why the Authority does not directly refer to the passage in the UNHCR 2012 Guidelines that was relied on by the appellant.

44    The Authority, which is an administrative decision-maker, not a court, was plainly not obliged to refer to every piece of evidence that was before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. More fundamentally, the weight that the Authority may choose to give to particular evidence, including so-called “country information”, is entirely a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. Neither the Circuit Court, on review of the Authority’s decision, nor this Court on appeal, can substitute in its own view as to the weight that should have been given to particular evidence, even if that view may differ from the Authority’s view: NAHI at [13].

45    The appellant appeared to quibble with the Authority’s reliance on the DFAT, Home Office and Department of State reports. He asserted that those reports did not indicate that the only people who are at risk of serious or significant harm on return to Sri Lanka are those who had participated in, or were participating in, post-conflict separatism or renewal of hostilities within Sri Lanka, or those who would be regarded as a threat to the state. The difficulty for the appellant, however, is that even if the reports were not particularly emphatic or definitive, they nonetheless provided support for the Authority’s key finding. That finding was, in substance, that because the appellant’s “profile” was, at most, that of a person who had been recruited as a child by the LTTE over two decades ago, his fear of persecution in Sri Lanka was not well founded. Nor was there any real chance that he would be harmed by the Sri Lankan authorities or anyone else in Sri Lanka in the foreseeable future. It is, in any event, at best doubtful that the Authority read or construed the reports in the definitive way that the appellant suggested.

46    The appellant’s argument concerning the UNHCR 2012 Guidelines, and the Authority’s findings based on, among other things, the DFAT, Home Office and Department of State reports was, as the primary judge found, in substance no more than an argument concerning the Authority’s factual findings and the merits of its decision. The Authority’s findings and conclusions which were the subject of the appellant’s challenge were open to it on the material before it. The primary judge was correct to find that those findings did not involve or reveal any jurisdictional error on the part of the Authority.

47    The appellant’s ground of appeal is accordingly unmeritorious and must be rejected

GROUND 2 – “NEW INFORMATION”

48    It is unnecessary to consider whether the Authority erred in considering any of the new information which it found met the criteria in s 473DD of the Act. That material was provided by the appellant, presumably on the basis that it somehow advanced his case. It is only necessary to consider whether the Authority erred in not considering the new information which it found did not meet the criteria in s 473DD of the Act.

49    As for the new information in the form of the country information cited in the appellant’s written submissions to the Authority (the new country information), the Authority clearly found, on the basis of the material before it, that all of the new country information that it was able to identify pre-dated the delegate’s decision: Reasons at [9]. On that basis, and because the appellant had not given any explanation for why he had not provided that new country information to the delegate, the Authority was not satisfied that it met the criterion in s 473DD(b)(i): that is, that the new country information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”: s 473DD(b)(i) of the Act; Reasons at [10]. The Authority also found, unsurprisingly, that the new country information comprised only “general country information”: Reasons at [11]. That amounted, in substance and effect, to a finding that the new country information did not satisfy the criterion in s 473DD(b)(ii): that is, that it 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” (emphasis added): s 473DD(b)(ii) of the Act.

50    It follows that, insofar as the new country information was concerned, the Authority found that it did not meet either of the two criteria in s 473DD(b). It follows that the Authority was prohibited from taking that new information into account and “assessment of the new information against the criterion specified in s 473DD(a) [was] redundant”: AUS17 at [11]. It is immaterial that the Authority went on to consider that the criterion in s 473DD(a) was also not met.

51    It follows that the Authority did not err in the way it addressed the new country information and did not err in declining to consider that information.

52    As for the new information in the appellant’s submission which consisted of the assertion that, upon the appellant’s return to Sri Lanka, checks would reveal “his family associations to the LTTE” (the new claim information), it may be accepted that the Authority’s reasons do not include clear or express findings as to whether that information met the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii). Nor is it readily apparent from the reasons that the Authority first considered whether the new claim information satisfied the criteria in s 473DD(b)(i) or (ii) before addressing whether it met the criterion in s 473DD(a). It is clear from AUS17 that that is what it was required to do, though it should of course be noted that the Authority’s decision was given prior to the judgment in AUS17.

53    It does not follow that the Authority erred in the way it assessed the new claim information, or erred in finding that the criteria in s 473DD were not met. The Authority’s reasons concerning its assessment of the new claim information, read fairly and in context, reveal that it effectively did first assess the new claim information against the criteria in s 473DD(b)(i) and (ii) and found, in substance, that the information did not satisfy either of those criteria. The Authority observed that the appellant had not previously claimed that he had any “family associations” with the LTTE. It also observed that the appellant had not provided any other evidence which allowed for a meaningful assessment of the information concerning his supposed family associations. Those two observations, taken together, plainly indicate that the Authority was not satisfied that the new claim information met either of the criteria in s 473DD(b) of the Act.

54    In relation to s 473DD(b)(i), the Authority’s reference to the fact that the appellant had not previously claimed to have had a family association with the LTTE was tantamount to a finding that no information to that effect had been provided to the Minister or his delegate. The reference to the fact that the appellant had provided no other information concerning that claim was tantamount to a finding that the Authority was not satisfied that the new claim information could not have been provided to the Minister or his delegate before the decision under s 65 of the Act was made. The appellant did not provide any information which was capable of satisfying the Authority of that fact.

55    In relation to s 473DD(b)(ii), the Authority’s reference to the fact that the appellant had not previously claimed to have had a family association with the LTTE was tantamount to a finding that the Authority was not satisfied that the new claim information was either “credible” or capable of affecting the consideration of the appellant’s claims. It was, in effect, a recent invention which was deserving of no weight. The reference to the fact that the appellant had provided no other information concerning that claim was tantamount to a finding that the Authority was not satisfied that the new claim information was not “previously known”. The appellant did not provide any information which was capable of satisfying the Authority of that fact.

56    It follows that, while the Authority may not have made any express or explicit findings concerning the criteria in s 473DD(b)(i) and (ii), it did in substance find that the new information did not meet those criteria. It is also tolerably clear that those findings effectively flowed through to the Authority’s finding that it was not satisfied that there were exceptional circumstances to justify considering the new information, though strictly speaking it was not required to make that finding given that it had, in substance, found that the criteria in s 473DD(b)(i) and (ii) had not been met. Either way, there is no sound basis for finding that the Authority erred in not approaching the new information in the manner identified in AUS17.

57    It should finally be noted, in relation to this issue, that even if there was a basis for finding that the Authority erred in the way it approached the new information, it would not necessarily follow that that error constituted a jurisdictional error. It would only constitute a jurisdictional error if that error demonstrably deprived the appellant of a realistic possibility of a different outcome: see generally Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26.

58    It is well-nigh impossible to accept that any error by the Authority in dealing with the new information in question deprived the appellant of a realistic possibility of a different outcome. That is so for at least two reasons.

59    First, it is difficult to see how the new claim information concerning family associations could possibly satisfy any of the criteria in s 473DD. It is difficult to see how a fleeting reference to family association with the LTTE, provided at the heel of the hunt, could possibly be seen to be credible personal information which may have affected the Authority’s consideration of the appellant’s claims. Nor was there any demonstrable basis upon which the Authority could have been satisfied that the new information was not previously known, or could not have been provided to the Minister, before the Minister made the decision under s 65 of the Act.

60    Second, even if the new information could somehow have met the criteria in s 473DD and, as a consequence, the Authority was required to consider that information in determining the review, the suggestion that there was a realistic possibility that a different result would have ensued is at best fanciful. The Authority accepted most of the appellant’s claims concerning his past association with the LTTE, but nevertheless found that he would no longer be a person of any interest to the Sri Lankan authorities. The fleeting reference in the appellant’s submissions to some unspecified family association with the LTTE would, in all the circumstances, almost certainly not have led the Authority to arrive at a different conclusion.

CONCLUSION AND DISPOSITION

61    The appellant has not made out his ground of appeal or otherwise demonstrated that the primary judge erred in dismissing his judicial review challenge to the Authority’s decision. There is also no sound basis for allowing the appeal on the basis that the Authority erred in declining to consider any new information.

62    The appeal must accordingly be dismissed with costs.

Associate:

Dated:    12 May 2023