Federal Court of Australia

CIM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 679

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (gpn-costs).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is Sri Lankan. He came to Australia in October 2012 as an “unauthorised maritime arrival” (within the meaning attributed to that term by s 5AA of the Migration Act 1958 (Cth) (the “Act”)). In April 2016, he made an application under the Act for a safe haven enterprise visa, in connection with which he claimed that he would be at risk of exposure to various forms of harm were he to return to Sri Lanka (the “Visa Application”).

2    In October 2016, a delegate of the first respondent (the “Minister”) dismissed the Visa Application. That decision (the “Delegate’s Decision”) was then referred for “fast track” review by the second respondent (the “IAA”) pursuant Pt 7AA of the Act (that review is referred to hereafter as the “Fast Track Review”).

3    On 5 May 2017, the IAA determined the Fast Track Review by affirming the Delegate’s Decision. That decision (the “IAA Decision”) was then made the subject of an application for judicial review under s 476 of the Act, which was filed in what was then known as the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)—hereafter, the “FCFCOA”). That application (the “Judicial Review Application”) was dismissed with costs: CIM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 571 (the “Primary Judgment”; Judge Ladhams).

4    By a notice of appeal dated 12 August 2022, the appellant appeals from the whole of the Primary Judgment. For the reasons that follow, that appeal should (and will) be dismissed. The appellant should pay the Minister’s costs.

Background

5    Before the IAA, the appellant contended that his Visa Application should be granted because, were he to return to Sri Lanka, he would be harmed (or worse) by Sri Lankan authorities on the basis of his Tamil ethnicity, his imputed links to the Liberation Tigers of Tamil Eelam (“LTTE”) and his status as a failed asylum seeker. Additionally, he claimed that Sri Lankan authorities or a Tamil paramilitary group would harm him (or worse) in retaliation for his having supported a candidate of the Tamil National Alliance in a provincial council election held in 2012. He submitted that, in the circumstances, he satisfied both the refugee criteria and the complementary protection criteria upon which the successful prosecution of his Visa Application principally hinged (they being the criteria that find expression in s 36(2)(a) and (aa) of the Act).

6    In order to substantiate the fears that he claimed were well-founded, the appellant sought to impress upon the IAA (and, before it, the Minister’s delegate) some experiences that he and members of his family had endured over an extended period of time. In particular, he told the IAA that:

(1)    his family had lived close to an area once controlled by the LTTE;

(2)    Tamils in that area were routinely suspected of being LTTE members;

(3)    the Sri Lankan army regularly subjected residents of the area, including members of his family, to house checks, during which they were asked about associations with the LTTE;

(4)    on one occasion, he was stopped and questioned by army personnel whilst on his way to school;

(5)    he relocated to another location with his aunt between 2006 and 2012 in order to avoid harassment by the Sri Lankan army and to avoid being conscripted to serve the LTTE;

(6)    he had three uncles (at least one of whom was a member of the LTTE) who went missing and/or were killed between 1990 and 2008, apparently because they were targeted during the Sri Lankan civil war; and

(7)    in 2012, he distributed notices and promotional material in support of a Tamil National Alliance candidate during an election.

7    The IAA accepted many of the propositions that the appellant advanced, including about his links to the LTTE, and past interactions that he and his family had had with Sri Lankan authorities prior to his arrival in Australia. It accepted that he had been involved “at a very low level” with a political campaign undertaken by a candidate aligned with the Tamil National Alliance. It did not accept, however, that the appellant had a profile sufficient to expose him to a risk of harm upon return to Sri Lanka. It also did not accept that he would be mistreated in such a manner as might visit serious harm because his departure from Sri Lanka was effected illegally or because he would return as a failed asylum seeker.

8    On the strength of those intermediate conclusions, the IAA was not satisfied that there was a real chance of the appellant being persecuted in Sri Lanka such that he might meet the refugee criteria that s 36(2)(a) of the Act establishes. It was likewise not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his return to Sri Lanka, there was a real risk that the appellant would suffer significant harm such that he might meet the complementary protection criteria that s 36(2)(aa) of the Act establishes.

9    On those bases, the IAA resolved to affirm the Delegate’s Decision.

The Judicial Review Application and the Appeal

10    By his Judicial Review Application, the appellant sought to attack the IAA Decision on three bases, namely that:

(1)    the IAA had made its decision without first considering matters that the appellant advanced in support of his Visa Application;

(2)    the IAA had misunderstood or misapplied various statutory tests; and

(3)    the IAA Decision was a product of legal unreasonableness.

11    In each case, it was said that the IAA Decision was attended by jurisdictional error, which the FCFCOA should address by setting it aside and requiring that the Fast Track Review be re-determined.

12    By the Primary Judgment, the court below did not accept that the IAA Decision was a product of jurisdictional error. The appellant’s Judicial Review Application was, on that basis, dismissed.

13    On appeal to this court, the appellant presses three grounds, namely:

1.     The Federal Circuit and Family Court at first instance erred in not finding that the [s]econd [r]espondent ("the Authority") fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

Particulars

a)     The Authority accepted:

(i)     that one of the [appellant’s] uncles was an LTTE member who went missing in 1998 and was possibly killed by the army, that another was killed in 2008 and another disappeared around 1990, and that it was plausible that they were targeted in some way;

(ii)     that the current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka provided relevant guidance and that it advised that family members of LTTE members may be at risk;

(iii)     that returning failed asylum seekers who left Sri Lanka illegally would be processed by the authorities and this would involve checking records and investigations;

but the Authority did not consider whether, in combination, the factors of being a family member of an LTTE member, a returned failed asylum seeker, and a person investigated by the authorities on or after return may affect whether the [appellant] has a real chance of persecution or a real risk of serious harm, for example by spending longer in detention and being at greater risk of harm during that process, or by being subject to harm after release.

b)     The Authority failed to consider as required by law the submissions and information before it relating to abuse of human rights, including torture.

c)     Further or in the alternative to particular (b) to this Ground, the Authority failed to consider as required by law the question whether the [appellant] had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. This question was squarely raised by the [appellant’s] evidence, his submissions, and the findings of the [s]econd [r]espondent.

d)     The Authority failed to consider as required by law the limitations of the DFAT report on which it relied.

2.     The Federal Circuit and Family Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test

Particulars

(a)     (Particular (b) at first instance.) The Authority erred in not seeking new information under section 473DC of the Migration Act 1958 (C'th) ("the Act") relating to the letters submitted in corroboration of the [appellant’s] claims about his history and his claim to need protection.

(b)     (Particular (c) at first instance.) The Authority erred in not seeking new information under section 473DC of the Act about an informational gap noted by the Authority, relating to whether the [appellant] complained to police about the claimed threats in September 2012, and if not, why not.

(c)     (Particular (d) at first instance.) The Authority erred in interpreting or applying the term "real chance" of persecution in section 5J(1 )(b) of the Act and "real risk" of significant harm in section 36(2)(aa) of the Act.

3.     The Authority fell into jurisdictional error in that it was unreasonable.

Particulars

(a)     Further or in the alternative to particular (a) to Ground 2 of this application, the Authority was unreasonable in not seeking seek new information under section 473DC of the Act relating to the letters submitted in corroboration of the [appellant’s] claims about his history and his claim to need protection.

(b)     Further or in the alternative to particular (a) to this Ground, the Authority was unreasonable in giving no weight to the corroborating letter it mentioned at [19] of its reasons.

(c)     Further or in the alternative to particular (b) to Ground 2 of this application, the Authority was unreasonable in not seeking new information under section 473DC of the Act about an informational gap noted by the Authority, relating to whether the [appellant] complained to police about the claimed threats in September 2012, and if not why not.

(d)     Further or in the alternative to particulars (b), (c) and (d) to Ground 1 and particular (c) to Ground 2 of this application, the Authority was unreasonable in rejecting claims of the [appellant] relating to him coming to the adverse attention of paramilitary forces, being at risk because of real or imputed connections to the LTTE, or because of returning as an illegal emigrant and being in detention or prison. It was therefore unreasonable in not finding that he had a "real chance" of persecution pursuant to section 5J(1)(b) of the Act or a "real risk" of significant harm in section 36(2)(aa) of the Act.

14    Those three grounds reflect the case that was advanced in the court below. The appellant charges the learned primary judge with having erred by failing to accept that the IAA Decision was attended by jurisdictional error in the ways that he alleged (and continues to allege). That being so, it is not necessary to recite why it was that the FCFCOA was moved to reject what the appellant advanced. If it is the case that the IAA Decision was not the product of the jurisdictional errors that were (and still are) alleged, then it will follow that the FCFCOA will have been correct so to have decided and the appellant’s challenges to those conclusions on appeal will fail. If the IAA Decision was attended by jurisdictional error, then the FCFCOA will have erred by concluding otherwise and the corresponding appeal grounds will necessarily succeed. Either way, it is upon the IAA Decision that this court’s attention must focus.

15    The three appeal grounds contain significant areas of overlap. In the analysis that follows, I have addressed each ground by reference to the substantive matters upon which each touches.

Ground one: failure to consider matters

16    The appellant’s first appeal ground is advanced at three levels. First, he maintains that the IAA made its decision on the Fast Track Review without considering submissions and information that were put before it about human rights abuses in Sri Lanka. Second, he maintains that the IAA erred by failing to consider whether the appellant was at real risk upon return to Sri Lanka of significant harm in detention. Third, he maintains that the IAA failed to consider limitations in a report of the Department of Foreign Affairs and Trade, upon which it placed some reliance.

17    Collectively, those three dimensions accumulate in the service of a single contention: namely, that the IAA failed properly to consider whether, upon his return to Sri Lanka, the appellant was at risk of exposure to relevant persecution or significant harm in the form of detention by authorities and subjection, whilst detained, to torture or mistreatment.

18    The appellant submits that there was material before the IAA that established that, “…even after the end of the [Sri Lankan civil war] and change of government in 2015 there was an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences.”

19    Information was placed before the IAA to substantiate that proposition. Much of it concerned allegations of mistreatment meted out by Sri Lankan security forces toward those suspected of links to the LTTE. Some was more general in nature and suggested a broader culture of mistreatment toward those charged with criminal misconduct, including minor criminal misconduct.

20    In its reasons for deciding as it did, the IAA considered what might happen to the appellant if he were to return to Sri Lanka. That consideration was split across two subjects: the first concerning whether or not the appellant had a well-founded fear of persecution such that he might satisfy the refugee criteria for which s 36(2)(a) of the Act provides; and the second concerning whether or not there was a real risk that he might be subjected to significant harm sufficient to satisfy the complementary protection criteria for which s 36(2)(aa) provides.

21    On the question of persecution, the IAA reasoned as follows (references omitted):

43.     I am not satisfied that the [appellant’s] status as a failed asylum seeker would result in him experiencing adverse attention on return to Sri Lanka. DFAT has assessed that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the [Immigrants and Emigrants] Act, is low. I accept that there are reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links, and I note the references to various accounts listed in the post-interview submission; I have taken into account the media report included in the post-interview submission regarding the mistreatment of a Tamil returnee in 2015, but I note that this person had been an LTTE member for a period of six years. I do not accept the [appellant] has such a profile or would be perceived as such. I am not satisfied that there is a real chance the [appellant] would face any harm as a returning failed Tamil asylum seeker.

44.     I have considered whether, when taken together, the totality of the [appellant’s] circumstances will lead to a real chance of him suffering harm from the authorities, including being a young Tamil male who lived close to an LTTE controlled area and who had interactions with the authorities, whose uncle was an LTTE member killed by the army, and whose other uncles may have been imputed as LTTE supporters, or for his role in the 2012 election, or if he should be politically active in the future. However, considering the country information before me, I am not satisfied that there is a real chance of the [appellant] being persecuted in Sri Lanka in the reasonably foreseeable future. I find that the [appellant’s] fear of persecution is not well-founded.

22    On the question of complementary protection, the IAA accepted that there was some prospect that, upon his return to Sri Lanka, the appellant would be “…detained for several hours at the airport, and possibly detained on remand for some days pending bail…” It concluded (references omitted):

51.     I accept there are reports of mistreatment of asylum seekers who have been returned to Sri Lanka, however DFAT reports that the risk of torture or mistreatment for the majority of returnees is low including for those suspected of an offence under the [Immigrants and Emigrants] Act. I have found above the [appellant] is not a person of interest to the Sri Lankan authorities. I am therefore not satisfied that there is a real risk that the [appellant] would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka.

23    As footnotes to those passages record, both processes of reasoning were informed by a report prepared by the Department of Foreign Affairs and Trade in January 2017 (a few months prior to the IAA Decision). That report—entitled, “dfat country information report sri lanka” (hereafter, the “DFAT Report”)—contained a section entitled “complementary protection claims”, under which some observations were recorded regarding the use (or alleged use) of torture by Sri Lankan authorities. The report noted that, although the Sri Lankan Constitution (amongst other laws) prohibits the use of torture:

…reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but…not reserved to this group).

24    The DFAT Report proceeded to assess “…that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and its immediate aftermath” and to record awareness of “…reported instances of torture carried out by the police”. As to the latter, it was observed that “[t]he UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security”.

25    The DFAT Report then (relevantly) concluded:

Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.

26    Under the heading “Torture and mistreatment of returnees”, the DFAT Report observed as follows:

DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.

…Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.

27    The appellant’s complaint is that the IAA failed to consider “with the engagement required by law” material that was put before it concerning the use by Sri Lankan authorities of torture and mistreatment toward people facing criminal investigation. Separately, he complains that the IAA “failed to consider the question whether [he] had a real chance of suffering persecution or significant harm…while in detention [in Sri Lanka]” (emphasis original).

28    I do not accept that either failure transpired. It is plain from the IAA’s reasoning that attention was given to the prospect that the appellant might be detained upon his return to Sri Lanka; and that, during his time in detention, he might be subjected to torture or mistreatment. It concluded, first, that the appellant is not somebody who is likely to attract the attention of authorities in a way that might increase his prospects of mistreatment; and, second and in any event, that the risk that a returning asylum seeker might be subjected to torture or mistreatment in Sri Lanka is low.

29    The appellant’s principal complaint is that the IAA did not address, or sufficiently address, the material that was put before it that inclined to the alternative conclusions. With respect, that cannot be accepted. The IAA was obliged to read, identify, understand and evaluate what the appellant put to it as to why his Visa Application should succeed: Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304, 312 [24] (Kiefel CJ, Keane, Gordon and Steward JJ). The weight that it might be disposed to give the evidence with which it was furnished was for it alone to determine: Abebe v Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ; hereafter “Abebe”); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). It was not obliged to offer a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to [its] findings of material fact”: Minister for Home Affairs v Buadromo (2018) 267 FCR 320, 333 [48] (Besanko, Barker and Bromwich JJ).

30    Moreover, whether a decision maker had regard to a particular consideration in the course of making a particular decision is a question of fact. It is usually (if not inevitably) resolved as a matter of inference, typically on the strength of the reasons that are given in support of the decision in question. An inference that a decision maker has failed to consider an issue is one that should not too readily be drawn in circumstances where the reasons for a given decision are comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ). The court requires clear evidence before such an inference might be drawn and it is the appellant who here bears the evidential onus: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ).

31    The appellant’s submission that the IAA ignored the evidence upon which he relied to make good on his contention that, if returned to Sri Lanka, he would be subjected to torture or mistreatment cannot be accepted. It is plain that the IAA was alive to what the appellant advanced. It addressed his contentions. That it preferred what was contained in the DFAT Report over the alternative observations that were recorded in other materials is of no moment.

32    Before concluding, mention should briefly be made of the third of the three dimensions inherent in the appellant’s first ground of appeal: namely, that the IAA “…failed to consider as required by law the limitations of the [DFAT Report] on which it relied”. The appellant submits that the DFAT Report was limited to an assessment of the risks of subjection to torture or mistreatment to which returned asylum seekers might be exposed in Sri Lanka “during their processing at the airport”.

33    Respectfully, there is no substance to that contention. The relevant parts of the DFAT Report are extracted above. The observations that they contain are not limited (or not wholly limited) in the way that the appellant alleges. On the contrary, they pertain generally to the risk of subjection to torture or mistreatment that returned asylum seekers face upon detention in Sri Lanka, whether at an airport or otherwise.

34    The appellant’s first ground of appeal is not made good. With respect, the learned primary judge was correct to reject the contentions inherent within it.

Grounds two and three: failure to obtain new evidence

35    By his second and third grounds of appeal, the appellant charges the IAA with having misunderstood the nature of its statutory task or, otherwise, of having acted unreasonably. The contentions focus in part upon the IAA’s power under s 473DC of the Act.

36    That section provides as follows:

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.

37    The appellant’s complaints focus on two aspects of the evidence upon which he relied. The first concerns evidence that he claimed was corroborative of his contention that, if he were to return to Sri Lanka, he would be harmed (or worse). The second concerns evidence of a complaint that the appellant’s mother made to Sri Lankan police.

38    The so-called corroborative evidence assumed the form of two letters: one from the candidate that the appellant supported during an election in 2012 (see above, [6(7)]); and another from a Catholic Bishop (hereafter, the “Bishop’s Letter”). Both purported to verify the appellant’s contention that he or members of his family had been threatened.

39    The IAA addressed the import that might attach to the two letters:

17.     I accept as plausible that the [appellant] was involved in supporting the [Tamil National Alliance] candidate at the 2012 Provincial Council election. However I note his account that he was not a [Tamil National Alliance] member and that he became involved only to have some fun with friends; he was working full time and only participated on “some Sundays”; his role was to distribute notices and stick up promotional material which his friend gave to him.

18.     The letter dated 28 December 2012 from the Eastern Provincial Council Member stated that the [appellant] “participated in the canvassing campaign” and that he is “well known” to the Council Member. At his [safe haven enterprise visa] interview the [appellant] stated that he had never met the Council Member. Noting this discrepancy and that from the [appellant’s] account he was not well known to the Council Member, I give little weight to the letter from the Council Member.

19.     I have had regard to the letter from the Diocese of Trincomalee-Batticaloa dated 26 December 2012. There is no indication in this letter that the author is aware of the [appellant’s] situation other than by hearsay; there is no indication that he was a witness to the events or otherwise able to verify the veracity of the claimed events. I give no weight to this letter.

40    The IAA addressed the evidence about the appellant’s mother’s complaint to Sri Lankan police as follows:

22.     I note the [appellant’s] mother lodged a police complaint in December 2012 stating that she was concerned for the [appellant’s] safety, yet there is no indication that the [appellant] complained to the police about the claimed threats in September 2012, despite claiming to be in fear for his safety.

41    By his second and third grounds of appeal, the appellant charges the IAA with having misunderstood the limits of its power under s 473DC to obtain new information; or having acted unreasonably by proceeding to make its decision without first obtaining further information. He submits that, in circumstances where the IAA was moved to identify why it might doubt or otherwise not attach probative value to the two letters, it was obliged to source further information that might either address those doubts or otherwise identify why some such value should so attach. Similarly, he submits that the IAA was not permitted simply to note that there was “no indication that the applicant complained to the police”—instead, he says, it was obliged to find out whether, in fact, that had occurred; and, if it hadn’t, why it hadn’t.

42    The appellant’s complaint is without substance. It is well settled that those charged with making decisions such as the one presently in focus are under no general duty to make inquiries related to relevant subject matters: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 290 (Mason CJ and Deane J); Abebe, 576 [187] (Gummow and Hayne JJ). On the contrary, the obligation to advance as fulsome a case for a visa as possible falls upon the visa applicant. In STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 251 (Ryan, Jacobson and Lander JJ), this court put the proposition in the following terms (at [25]):

… It is well established that a decision-maker has no duty to make his or her own enquiries in order to make out the applicant’s case; see Abebe v The Commonwealth (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). There is a limited exception to the rule namely “where it is obvious that material is readily available which is centrally relevant to the decision”; see Prasad v Minister for Immigration and Ethnic Affairs (1984-85) 6 FCR 155 at 170 (Wilcox J); see also Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559 (Black CJ, Von Doussa, Sundberg and Mansfield JJ).

43    Here, the appellant says that the circumstances fall within the “limited exception” to which the passage above refers. He relies upon the observations of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; with whom Heydon J agreed although not on this point; hereafter, “SZIAI”), in which the majority held (at 21 [25]) that there may be circumstances in which a decision maker’s “…failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”.

44    The “new information” that the appellant says ought to have been obtained in relation to each of the two letters to which the IAA gave little or no weight does not fall within that description. Rather, the new information that the appellant says ought to have been obtained is information that might or might not have persuaded the IAA to treat the letters differently. Such inquiry as the receipt of that information might require was not obvious; and the matters to which such an inquiry might have been directed (namely, whether the letters should serve as corroborative of the appellant’s own narrative) were not sufficiently critical to the disposition of the Fast Track Review (although, no doubt, they may have assisted the appellant).

45    Likewise—and for equivalent reasons—the “new information” that the appellant says ought to have been obtained as to whether or not he had complained to police does not fall within the narrow exception identified in SZIAI. At best, it might have been information that could have cast the appellant’s Visa Application in a more favourable light; but it was not information of such obvious centrality and availability that the IAA had no option but to obtain it.

46    The appellant’s complaint rises no higher than that the IAA ought to have made some attempt to address—or to have afforded the appellant some opportunity in advance to address—the shortcomings that it identified in relation to his evidence. So to find would be to set almost at nought a vast array of learning that has held to the contrary: see EXT20 v Minister for Home Affairs (2022) 291 FCR 55, 89-92 [175]-[186] (Snaden J, with whom Wigney J agreed in the result; Mortimer J dissenting) and the authorities there referred to.

47    It follows that these aspects of grounds 2 and 3 are not made good. The learned primary judge was, with respect, correct so to conclude.

Grounds two and three: real risk

48    By his second and third grounds of appeal, the appellant also charges the IAA with having misunderstood the nature of its statutory task—or, otherwise, of having acted unreasonably—insofar as it concluded that there was not a relevant “real chance” or “real risk” that he would, if returned to Sri Lanka, be exposed to persecution or significant harm.

49    At both levels, the appellant’s contention is a transparent attempt at merits review and is wholly without substance. The IAA’s reasons for decision make clear that it did not labour under any misunderstanding of its statutory task and that it did not lack an evident or rational justification for favouring the conclusions that it drew. On the contrary, as the learned primary judge noted (Primary Judgment, [80]-[81]):

…the Authority carefully considered the [appellant’s] profile, and the country information about people most at risk of harm, and found that the [appellant] did not have a profile that would place him at risk of harm. These findings were open to the Authority.

The Authority has provided an evident and intelligible justification for its findings, and its decision cannot be said to be unreasonable: see, for example Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10], [82].

50    These related aspects of grounds 2 and 3 are also not made good. The learned primary judge was, with respect, correct to dismiss the aspects of the Judicial Review Application to which those grounds relate.

Ground three: unreasonable rejection of the bishop’s letter

51    The appellant advances a further claim of legal unreasonableness in relation to the IAA’s treatment of the Bishop’s Letter. It is to be recalled that the IAA resolved to afford that letter “no weight”. The appellant seeks to impugn that resolution as legally unreasonable.

52    In that endeavour, he must fail.

53    The IAA’s reasons for attributing “no weight” to the Bishop’s Letter are evident from the written reasons published in relation to its decision. It reasoned that the letter appeared simply to record, or to purport to record, events on the basis of hearsay representations made to its author. It noted that the letter gave “no indication that he was a witness to the events or otherwise able to verify [them]”. The IAA was entitled to approach the Bishop’s Letter as it did for those reasons. Doing so cannot be impugned as legally unreasonable.

54    That was the conclusion of the learned primary judge and, with respect, her Honour did not err. This aspect of the appellant’s third ground of appeal is not made good.

Disposition

55    None of the appeal grounds can succeed. The appeal should (and will) be dismissed with the usual order as to costs.

Associate:

Dated:    23 June 2023