FEDERAL COURT OF AUSTRALIA

GJM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 524

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be allowed.

3.    Orders 3 and 4 made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)) on 17 April 2020 be set aside and in lieu thereof order that:

(a)    A writ of certiorari issue to quash the decision of the second respondent dated 8 November 2018.

(b)    The matter be remitted to the second respondent, to be determined according to law.

(c)    The first respondent pay the applicant’s costs of the proceeding, as agreed or taxed.

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

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)) on 17 April 2020 dismissing an application for judicial review of a decision of the second respondent (Authority) dated 8 November 2018: see GJM18 v Minister for Immigration [2020] FCCA 632. The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2    For the following reasons the appeal should be allowed.

BACKGROUND

3    The appellant is a Sri Lankan national of Christian faith and Tamil ethnicity from the Northern Province. He first arrived in Australia by boat at the Cocos Islands on 7 September 2012, travelling with his father.

4    On 14 March 2016 the appellant lodged his application for a SHEV.

5    In that application the appellant made the following claims for protection, as summarised by the Authority at [12] of its decision record:

•    In 2006, when the [appellant] and his father were fishing, the boat of Liberation Tigers of Tamil Eelam (LTTE) approached them and took them to their area - Vidathalthivu. The LTTE detained them and wanted the [appellant]’s father to join their movement and fight for them but his father refused. The [appellant] was released by the LTTE but on the condition that he would bring food and medicine to them. Afterwards the [appellant] took food and medicine to LTTE in Vidathalthivu via boat from Mannar for many years.

•    The [appellant] was abducted by the LTTE in November 2006. After about a month, he found a way to escape through a barbed wire fence and walked home.

•    One day in mid-2007, while the [appellant] was living at a church and went fishing with his father, they were approached by the LTTE boat and detained. The LTTE demanded favours from them and the [appellant’s] father agreed to give kerosene. The [appellant] had to promise to regularly provide them with other materials such as food items, some medicines and bandages, bags, petrol, or kerosene. The [appellant] and his father provided these items to the LTTE for about a year until the war ended.

•    One of the [appellant’s] distant relatives avoided rehabilitation and he was arrested by the army and went through the rehabilitation but he later disappeared.

•    The army went to the home of three local Tamil people for enquires and they disappeared. The [appellant] and his father escaped from Sri Lanka because they were worried that they would also disappear.

•    The [appellant] is fearful of being attacked or prosecuted unfairly because of the ammunition dump found near their house.

•    The [appellant] is also fearful of being seen to be an LTTE supporter or cadre because of their land being used by the LTTE during the war.

•    His sister was detained by the army for three days, raped, and brought back to the [appellant’s] family in 2007.

•    He also relies on the claims made in his father’s written SHEV statement.

6    On 9 February 2018 a delegate of the Minister refused to grant the appellant a SHEV. The delegate’s decision was referred to the Authority.

7    On 8 November 2018 the Authority affirmed the delegate’s decision not to grant the appellant a SHEV.

THE AUTHORITY’S DECISION

8    The Authority first dealt with the information before it. It noted that it had had regard to the material given by the Secretary of the Minister’s Department under s 473CB of the Migration Act 1958 (Cth) which included a copy of the appellant’s father’s SHEV interview.

9    It also referred to and considered the following further information which the appellant had provided to it:

(1)    a submission and country information in the form of two reports by the International Truth and Justice Project (ITJP) and a media article relating to the publication of the most recent of the two reports. In relation to that material the Authority:

(a)    noted that the submission extracted from and referred to country information which was not before the delegate and which is new country information;

(b)    found that the new country information predated the delegate’s decision, no explanation had been given as to why it could not have been provided earlier and thus was not satisfied that it could not have been provided to the Minister before the delegate made her decision. It was also not satisfied that the information was credible personal information not previously known and which if known may have affected consideration of the appellant’s claims;

(c)    noted that one of the ITJP reports included with the submission was before the delegate and is not new information but that the other ITJP report (which like the Authority I will refer to as the 2017 ITJP Report) and the media article from The Diplomat dated 21 July 2017, which was an interview with the author of the 2017 ITJP Report, were not before the delegate and were new information;

(d)    found that the 2017 ITJP Report was country information and had some reservations about its relevance to the appellant’s claims and personal circumstances. The Authority was satisfied that it was credible information but was not satisfied that it was personal information which, had it been known, may have affected consideration of the appellant’s claims. The Authority also observed that the 2017 ITJP Report was published before the delegate’s decision, no explanation was given by the appellant as to why it could not have been provided earlier and was not satisfied that it could not have been provided to the Minister before the decision was made; and

(e)    was not satisfied that the 2017 ITJP Report met the requirements of s 473DD(b) of the Act or that there were exceptional circumstances to justify its consideration of that report. It was also not satisfied that there were exceptional circumstances to justify considering the article from The Diplomat;

(2)    a letter dated 15 March 2018 signed by the Bishop of Mannar, Dr Fernando (Bishop’s Letter) provided on 28 April 2018. That letter was not before the delegate and the Authority found that it was new information. Given the date of the Bishop’s Letter the Authority accepted it could not have been provided to the delegate before she made her decision. However, the Authority:

(a)    observed that the content of the Bishop’s Letter concerned events which occurred some years before the appellant and his father left Sri Lanka and no explanation was given as to why it could not have been obtained earlier given it related to events which the appellant claimed led to his departure from Sri Lanka;

(b)    had a number of reservations about the credibility of the Bishop’s Letter’s content as it included matters not relevant to any claim made by the appellant, namely that he and his father were suspected by authorities of carrying weapons for the Liberation Tigers of Tamil Eelam (LTTE). It considered that if that was the case the appellant would have made such a claim in either his SHEV statement or interview. It therefore did not consider that part of the letter to be credible; and

(c)    was not satisfied that there were exceptional circumstances to justify considering the Bishop’s Letter; and

(3)    documents, translations and letters provided by the appellant on 21 May 2018 which the Authority found was new information. In relation to those documents the Authority:

(a)    did not accept the documents on the letterhead of the Presidential Commission to Investigate into Complaints Regarding Missing Persons as they were in Tamil with no accompanying translations and it was unable to understand their content;

(b)    did not accept the documents and a letter on the letterhead of the International Committee of the Red Cross (ICRC) as they referred to a particular missing person, the relationship of that person to the appellant was not apparent and no explanation was provided about the relevance of those documents;

(c)    did not accept a handwritten note, which was partly in Tamil, as its relevance to the appellant’s claims was not apparent;

(d)    accepted a document signed by a person referred to as GN on 5 March 2018 addressed “To Whom It May Concern”. The Authority found that, on its face, the information was credible personal information not previously known and, had it been known, may have affected consideration of the appellant’s claims and was satisfied that exceptional circumstances existed to justify consideration of the letter from GN; and

(e)    found that three letters in English were not before the delegate and were new information. They were a letter dated 6 March 2018 from the Federation of Community Based Organisations, Mannar District (FCBO Letter) and letters dated 7 March 2018 from S Ponniaiah, Justice of the Peace (Ponniaiah Letter) and T Vinothan, Attorney at Law (Vinothan Letter). Given the dates of the letters the Authority accepted that they could not have been provided to the delegate before she made her decision. However, it also found that the content of the letters concerned events which occurred some years before the appellant and his father left Sri Lanka and that the content of some of the letters did not reflect the claims made by the appellant and it would expect that if the events recited in the letters had occurred the appellant would have mentioned them either in his SHEV statement or interview. The Authority was not satisfied that the requirements of s 473DD(b) of the Act were met in relation to the letters and concluded that it was not able to consider them.

10    The Authority obtained new information in accordance with s 473DC(1) of the Act, being the most recent Department of Foreign Affairs and Trade country information report on Sri Lanka (DFAT 2018 Report). It noted that the DFAT 2018 Report contained information on the situation for people with a profile similar to that of the appellant in Sri Lanka and that it considered DFAT an authoritative source of country information. The Authority was satisfied that there were exceptional circumstances to justify considering this new information.

11    After summarising the appellant’s claims (see [4] above) the Authority proceeded to assess whether he was a refugee by considering each of the appellant’s claims. Given the way the issues developed on appeal it is not necessary to set out the Authority’s reasons in any detail.

12    The Authority considered the appellant’s claims and concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and thus did not meet the requirements of s 36(2)(a) of the Act. The Authority also considered whether there was a real risk that the appellant would suffer significant harm on his return to Sri Lanka but concluded that he would not and thus that he did not meet the requirements of s 36(2)(aa) of the Act.

THE PROCEEDING IN THE FEDERAL CIRCUIT COURT

13    On 6 December 2018 the appellant filed an application for judicial review in the Federal Circuit Court.

14    At the hearing before the primary judge the appellant was represented by counsel and solicitors. He was granted leave to rely on a further amended application filed on 19 March 2020 in which he raised five grounds of review as follows:

1.    The IAA failed to admit and consider the following documents and otherwise misapplied s473DD:

a.    ITJP Report, “Silenced: survivors of torture and sexual violence in 2015” January 2016 [3,4]

b.    ITJP Report “Unstoppable: 2016/2017 Torture in Sri-Lanka” July 2017 [3,4]

c.    Letter from Most Rev.Dr.Emmanuel Fernando, Bishop of Mannar, Sri-Lanka, 15 March 2018 [5]

d.    Letters from Presidential Commission to investigate into complaints regarding missing persons [7]

e.    Letters from International Committee of the Red Cross [ICRC] [7]

f.    Letter from [GN], 5 March 2018 [8]

g.    Letter from Federation of Community based Organisations, Mannar District, 6 March 2018 [9,10]

h.    Letter from S Ponniaiah, Justice of the Peace, 7 March 2018 [9,10]

i.    Letter from T Vinothan, Attorney at Law, 7 March 2018 [9,10]

2.    The IAA acted illogically and unreasonably, failed to give active intellectual consideration and failed to consider integers of the [appellant’s] claims:

Particulars

(a)    In determining that the incidents referred to in the Applicant’s first (undated) statement did not occur,

(b)    In determining that the incidents referred to in the Applicant’s father’s statement did not occur,

(c)    In determining that the incident on November 2006 did not occur

3.    The IAA erred in finding that the rape of the Applicant’s sister was irrelevant to the Applicant’s claim, and thus failed to consider an integer of the Applicant’s claim.

4.    The jurisdiction of the IAA miscarried in that the Secretary failed to

a.    Provide documents to the IAA pursuant to s473CB(1)(b)

b.    Consider what documents were relevant to the IAA review, and

c.    Provide the IAA with all relevant documents under s473(1)(c)

In particular, a video provided by the Applicant and/or his father to the delegate.

5.    In the alternative, the IAA failed to consider whether to exercise its discretion to get further information under s473DC, or if it did so consider, it failed to do so reasonably.

(Strikeout omitted.)

15    Having regard to the appellant’s notice of appeal (see below) only grounds 1 to 3 of the further amended application relied on before the primary judge are relevant to the appeal.

16    The first ground raised before the primary judge concerned the Authority’s rejection of the nine documents particularised in the ground which were provided to it by the appellant and the Authority’s application of s 473DD of the Act. The primary judge addressed each item at [96]-[101] of his reasons, finding that the Authority was not in error to find that certain information was not “new information” or “credible personal information” within the meaning of s 473DD(b)(ii) of the Act, did not err in its construction of the “exceptional circumstances” test in s 473DD(a) of the Act and that its reasons were “within its decisional freedom” and did not display any unreasonableness.

17    By ground 2 of the further amended application the appellant contended that the Authority acted illogically and unreasonably, failed to give active intellectual consideration and failed to consider particular claims, namely those concerning the appellant’s claims made in his first statement, the appellant’s claim that he was captured by the LTTE in November 2006 and those claims set out in his father’s SHEV statement which the appellant did not refer to in his SHEV interview.

18    The primary judge considered that claim at [103]-[107] of his reasons finding that the Authority’s treatment of each aspect of those claims was a reasonably open analysis of the overall evidence in the appellant’s case and did not disclose any error.

19    Ground 3 of the appellant’s further amended application contended that the Authority erred in its consideration of the appellant’s claim in relation to the sexual assault of his sister. The primary judge addressed this claim at [108]-[109] of his reasons finding that “[t]here was no information before the Authority that the sexual assault was related in particular to perceived LTTE links of the family or for any other reason particular to the [appellant]”. The primary judge concluded that the claim could not be made out on the evidence before the Authority and that no jurisdictional error was established.

THE APPEAL

20    The appellant was unrepresented before this Court.

21    On 8 May 2020 he filed a notice of appeal raising the following three grounds:

1.    That there is a jurisdictional error in the Federal Circuit Courts decision.

2.    The Court Below erred in finding that the second respondent did not fail to admit and consider the following documents and otherwise misapplied s473DD.

3.    The Court Below erred in finding that the second respondent had considered all relevant claims advanced by the appellant.

22    Ground 1 in the notice of appeal is a general assertion of “jurisdictional error” in the decision of the primary judge. It is not particularised and does not identify any appealable error in the reasons of the primary judge. The Minister submitted that his understanding was that ground 2 sought to agitate ground 1 of the further amended application before the Federal Circuit Court and that ground 3 sought to agitate grounds 2 and 3 of the further amended application before the Federal Circuit Court. Having considered the grounds in the appellant’s notice of appeal and the grounds raised in the further amended application before the primary judge I accept that is so.

Adjournment application

23    At the commencement of the hearing of the appeal the appellant sought a three month adjournment. In support of that application the appellant relied on: a letter dated 19 March 2023 addressed to the registry of this Court and its enclosures comprising emails from the Minister’s solicitors to the appellant dated 12 December 2022 and 20 February 2023; an email dated 12 December 2023 from the appellant to shamili.kugathas@australianpresencelegal.com; a letter dated 20 March 2023 from Irfan Afzal; and a letter dated 20 March 2023 from the appellant addressed “To Whom It May Concern” which authorised Mr Afzal to communicate with the Minister’s solicitors and the registry of this Court.

24    The appellant sought his adjournment for the following reasons: he was under the impression that Ms Kugathas from Australian Presence Legal was acting on his behalf; he cannot read and understand English properly; and he has to seek assistance from others. He assumed that the notice of appeal was filed by his lawyer on his behalf and stated in his letter to the Court that he was not aware, or advised, of her doing so; when he received an email dated 12 December 2022 from the Minister’s solicitors he could not understand its contents and immediately forwarded it to Ms Kugathas. He tried to call her many times but was unable to speak to her; and he has sought the assistance of Mr Afzal who is not a lawyer but is prepared to assist the appellant with his appeal. However, in order to do so Mr Afzal requires an adjournment of at least three months.

25    I declined to grant the adjournment sought. As I explained to the appellant at the time, that was for the following reasons.

26    First, the appellant filed his notice of appeal in May 2020 and has had almost three years to obtain legal assistance. On the face of the notice of appeal it is apparent that it was filed by the appellant and not by a solicitor.

27    Secondly, on 12 December 2020 the Minister’s solicitors informed the appellant of the hearing scheduled to take place on 20 March 2023. That is, the appellant was given a period of just over three months’ notice of the intended date for hearing, which, in my view, was sufficient time to obtain legal advice.

28    Thirdly, at the time the Minister’s solicitors notified the appellant of the hearing date they also provided a copy of the orders made by a Registrar of this Court on 10 June 2020 which required the appellant to file submissions no later than 10 days before the hearing. The appellant was on notice of what he was required to do and by when.

29    Finally, the proceeding listed before me is an appeal from a decision of the Federal Circuit Court with the Court’s role limited to considering whether there is any appealable error in the decision of that court. The appellant sought the adjournment in part to put further information before the Court in relation to his claims. However, it is not the role of this Court to undertake merits review of a decision refusing the grant of a visa.

The appellant’s submissions

30    Prior to the hearing, the appellant did not provide any written submissions to the Court in support of his grounds of appeal. At the hearing, when invited to do so he made oral submissions.

31    The appellant submitted that he had 11 documents in support of his claim, which I infer is the additional information provided to the Authority which is the subject of ground 2 of the appeal. He submitted that the documents that were in Tamil should have been translated into English by his lawyer and that as he has those documents he can have them translated. He submitted that he has been waiting for an appointment with his lawyer but has only managed to meet with him on one occasion. The appellant also said that no one had asked him to produce documents in support of his claim. He again sought a three month period to enable his “principal”, who I understand to be Mr Afzal, to prepare sufficient and relevant documents as evidence of his claims. The appellant submitted that his lawyer made a mistake and failed to provide sufficient evidence but that his “principal” would collect and provide the information.

32    The appellant submitted that it is very difficult to get documents from Sri Lanka and that he had provided a report from the ICRC and the Bishop’s Letter. He explained that the ICRC report referred to his cousin, not to him, and that his cousin lived next door. He said that his lawyer had failed to mention all the evidence that he had.

Ground 2

33    As set out above, by ground 2 of his notice of appeal the appellant seeks to challenge the decision of the primary judge insofar as his Honour dismissed ground 1 of the further amended application. By that ground the appellant contended that the Authority had misapplied s 473DD of the Act in relation to nine documents which he had provided to the Authority.

34    Section 473DC(1) of the Act defines “new information”. It relevantly provides:

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.

35    Section 473DD of the Act provides:

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.

36    In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 the High Court considered the operation of s 473DD of the Act. The plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) held that the Authority is to assess such new information as it might obtain from a 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)”: at [11]. Their Honours went on to note (also at [11]) that if neither of the criteria in subs 473DD(b)(i) and (ii) is met the Authority is prohibited from taking the new information into account in making its decision on the review but if either or both of the criterion specified in those subsections 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) of the Act.

37    The term “credible personal information” within s 473DD(b)(ii) of the Act means information which is “open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477; [2020] FCAFC 159 at [35]-[37], [56]-[79].

38    Before the primary judge the appellant challenged the Authority’s rejection of nine documents which were provided by him to the Authority. The primary judge considered each category of documents, finding in each case that the Authority had not misapplied s 473DD of the Act.

39    It is convenient to deal with each document or category of documents particularised by the appellant and which the Authority found did not meet the criteria in s 473DD of the Act.

The ITJP reports

40    There were two ITJP reports. The first was a report dated January 2016. The primary judge found that the Authority had correctly concluded that it was not new information because it was before the delegate. A review of the delegate’s decision confirms that to be the case. The delegate referred to that particular report at footnote 43 of its decision.

41    The second was the 2017 ITJP Report. Although not raised before the primary judge or in submissions relied on in this Court, it became apparent after the hearing before me that a report dated 14 July 2017 titled “Unstopped: 2016/17 Torture in Sri Lanka” by the ITJP is also referred to at footnote 43 of the delegate’s decision. Accordingly I sought further submissions from the parties addressing whether, given footnote 43 to the delegate’s decision, the 2017 ITJP Report was before the Minister and, if so, the effect of this fact on the Authority’s decision. Both the appellant and the Minister responded to the request.

42    As is apparent from the delegate’s decision, and as the Minister accepts, the 2017 ITJP Report was before the Minister and thus was not “new information” for the purposes of s 473DC(1) of the Act. Thus the Authority was not required to consider whether the 2017 ITJP Report met the requirements of s 473DD of the Act and the 2017 ITJP Report should have formed part of the material that was before the Authority on its review. It follows that the Authority erred in its conclusion (at [4]) that it was unable to consider the 2017 ITJP Report.

43    However, the Minister submitted that the Authority’s error is not material and thus not jurisdictional in nature. The Minister contended that the Court can be satisfied that the error did not deprive the appellant of the realistic possibility of a favourable outcome on his review. The Minister submitted that the Authority’s mistaken discarding of the 2017 ITJP Report did not affect the ultimate exercise of its power to affirm the decision under review, as it could not conceivably have resulted in a more favourable outcome for the appellant because:

(1)    the Authority did not accept that the 2017 ITJP Report was relevant to the appellant’s claims; and

(2)    the substance of the 2017 ITJP Report, as considered by the Minister’s delegate, was the subject of sufficient other evidence before the Authority such that consideration of that report would have been merely duplicative and thus immaterial to the Tribunal’s reasoning.

44    An error is material if it is established that there is a realistic possibility that the Authority’s decision could have been different had the breach of the relevant condition not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45].

45    In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [73]-[83] a Full Court of this Court provided a summary of the principles in relation to materiality. It is not necessary to set them out save to note that in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [3] Kiefel CJ, Gageler, Keane and Gleeson JJ declined to revisit SZMTA and at [38]-[39] relevantly said:

[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]    … 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.

46    The Minister relies on the Authority’s finding (at [4]) that it had “some reservations about the relevance of the [2017 ITJP Report] to the [appellant’s] claims and personal circumstances” and that while the information was credible it was not satisfied that it was “personal information which, had it been known, may have affected the consideration of the [appellant’s] claims”. The Minister submitted that the Authority’s reasoning disclosed that it was not satisfied that the 2017 ITJP Report was relevant to or capable of affecting the consideration of the appellant’s claims. I disagree.

47    The Authority made the finding on which the Minister relies in the context of its consideration of whether to accept the 2017 ITJP Report as new information to be considered on the review. For that purpose, the Authority had to consider whether the 2017 ITJP Report met the requirements of s 473DD of the Act. That is whether the report was not and could not have been provided to the Minister before the Minister made the decision or whether it is personal credible information within the meaning of s 473DD(b)(ii); and only if it met one of those criteria, whether there were exceptional circumstances to justify considering the new information. The application of s 473DD does not require the Authority to consider the relevance of the new information, although I accept that relevance may in some circumstances arise as an integer, but not determinative, of the inquiry as to exceptional circumstances. In any event, as the appellant submitted, the Authority’s statement is no more than a reservation and falls short of a finding that the 2017 ITJP Report lacks relevance.

48    Here, the result of the Authority treating the 2017 ITJP Report as new information was to consider that report for the purposes only of determining whether it should consider it in making its decision on the review. To the extent it considered its relevance to the claims made by the appellant on the review it did so only in that context. Further it did not explain why it “had some reservations” about its relevance.

49    Nor do I accept the Minister’s submission that the substance of the 2017 ITJP Report was the subject of sufficient other evidence before the Authority. I would not conclude that to be so based on the context in which that report is referred to in the delegate’s decision as the Minister urges me to do or by having regard to the Authority’s treatment of the claims made by the appellant.

50    The appellant submitted that the 2017 ITJP Report relevantly provides that: authorities in Sri Lanka may act with impunity; the use of torture against subjects continues, albeit in limited numbers; and an LTTE connection is a risk factor, whether real or imputed. As the Authority accepted (at [21]-[22]) that the Appellant or his family did have connections with the LTTE, the appellant submitted that consideration of the 2017 ITJP Report could lead the Authority to find a real or imputed connection between the appellant and the LTTE.

51    Had the 2017 ITJP Report not been excluded by the Authority, the body of material and the matters to be taken into consideration by the Authority would have been different. There would have been an additional report before the Authority. That report could have been considered together with the balance of the material before the Authority and the Authority could in that context determine its relevance to the appellant’s claims and whether it added anything to the balance of the body of material before it in considering those claims. As submitted by the appellant, the Authority’s decision turns on matters of degree and the 2017 ITJP Report may well be relevant to those questions of degree. In those circumstances I am satisfied that there is a realistic possibility of a different outcome.

52    Accordingly, given the error identified in relation to the Authority’s treatment of the 2017 ITJP Report and that the error was material ground 2 of the appeal is made out.

The balance of the “new information” considered by the Authority

53    Although it is not strictly necessary for me to do so I consider the Authority’s treatment of the balance of the “new information” which is the subject of ground 2 below.

The Bishop’s Letter

54    The Bishop’s Letter post-dated the delegate’s decision. However, given that its contents related only to events occurring years earlier, it was open to the Authority to find that it could have been sourced at an earlier point in time. The Authority did not accept the appellant’s explanation for obtaining the document late.

55    The Authority was not satisfied that the information referred to in the Bishop’s Letter was “credible”. That letter raised claims about weapons smuggling for the LTTE which were claims that neither the appellant nor his father had previously advanced. It was open to the Authority to consider those claims as highly significant and expect them to be advanced by the appellant if they in fact related to him.

56    It follows that the Authority was not satisfied that either subs 473DD(b)(i) or (ii) of the Act was satisfied in relation to the Bishop’s Letter. Despite the Authority casting its ultimate reasoning in terms of “exceptional circumstances” there was no error in the Authority’s rejection of the Bishop’s Letter and the primary judge was correct to reach that conclusion.

Documents on the letterhead of the Presidential Commission and of the ICRC

57    The Authority declined to accept the documents on the letterhead of the Presidential Commission because they are in Tamil and were provided without any translations. Accordingly it was unable to understand their contents. There was no error in the Authority’s rejection of the documents in that regard: see AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983 at [45]-[47] and [58].

58    The Authority rejected the documents from the ICRC because they referred to a named missing person whose relationship to the appellant was not apparent and not explained. The Authority was therefore not satisfied that these documents were relevant to the appellant’s claims for protection. In other words there was no factor connecting the missing person referred to in the letter to the appellant. Before the primary judge the appellant contended that it was relevant because he made a claim that he feared disappearing. However, that the appellant made a claim to fear disappearing did not mean that the information satisfied s 473DD of the Act. In any event, the Authority accepted the existence of enforced disappearances and abductions during the civil war and considered whether they were ongoing in light of more recent country information.

Support letters

59    These documents relevantly comprise the FCBO Letter, the Ponniaiah Letter and the Vinothan Letter. While the letters post-dated the delegate’s decision the Authority declined to accept them because the requirements of s 473DD(b) of the Act were not met. The Authority found that was because:

(1)    the letters related to events which occurred some years before the appellant and his father left Sri Lanka. It did not accept the appellant’s explanation for the delay in obtaining them. Thus the Authority was not satisfied that the requirements of s 473DD(b)(i) of the Act were met; and

(2)    none of the letters contained credible personal information about the appellant. The FCBO Letter referred to “teenage activities” of the appellant in assisting the LTTE, did not correctly name him and only gave his father’s given name, without identifying the appellant and his father as father and son, and the Ponniaiah Letter and Vinothan Letter were in almost identical terms despite being from different authors. Although they provided support for one claim made by the appellant they went on to provide information that did not form any part of the appellant’s or his father’s claims. The Authority noted that it would have expected that, given their serious nature, if those events had in fact occurred the appellant would have mentioned them either in his SHEV statement or interview. These matters were relevant to a consideration of the application of s 473DD(b)(ii) of the Act. Further, when assessing whether new information is credible personal information the Authority is entitled to consider other material already before it on the review, including the appellant’s claims and other evidence provided by him: see BTW17 at [71]-[72] and [78(c)].

Conclusion

60    It follows that, although the issue was not identified before the primary judge in the way it developed before this Court, ground 2 of the appeal is made out. It is thus not necessary for me to consider ground 3 of the appeal.

61    The appeal should be allowed, orders 3 and 4 made by the primary judge should be set aside and in lieu thereof orders should be made quashing the decision of the Authority made on 8 November 2018, remitting the matter to the Authority for determination according to law and for the first respondent to pay the appellant’s costs of the proceeding, as agreed or taxed.

62    The appellant was not legally represented at the hearing of the appeal but was subsequently represented by counsel at a later stage in the proceeding, namely in connection with the further submissions filed in response to the issue raised concerning the 2017 ITJP Report. Accordingly, I will make an order that the Minister pay his costs of the appeal, as agreed or taxed.

Associate:

Dated:    25 May 2023