FEDERAL COURT OF AUSTRALIA

BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Each of BTA18 and BTB18 be given leave to rely on the amended notice of appeal in the form attached to their respective interlocutory applications dated 28 and 29 July 2023.

3.    The appeal by BTA18 be allowed. Orders 2 and 4 of the orders of the Federal Circuit Court of Australia (as it was then known) (FCC) made on 18 September 2020 be set aside, and in lieu thereof the Court orders that:

(a)    the decision of the Second Respondent in relation to BTA18 dated 16 March 2018 be quashed;

(b)    the referred application in relation to BTA18 be remitted to the Second Respondent, differently constituted, to be re-determined according to law; and

(c)    the First Respondent pay BTA18’s costs of and incidental to the application before the FCC and of and incidental to his appeal, to be taxed by a Registrar in default of agreement.

4.    The appeal by BTB18 be allowed. Orders 3 and 5 of the orders of the FCC made on 18 September 2020 be set aside, and in lieu thereof the Court orders that:

(a)    the decision of the Second Respondent in relation to BTB18 dated 16 March 2018 be quashed;

(b)    the referred application in relation to BTB18 be remitted to the Second Respondent, differently constituted, to be re-determined according to law; and

(c)    the First Respondent pay BTB18’s costs of and incidental to the application before the FCC and of and incidental to his appeal, to be taxed by a Registrar in default of agreement.

5.    The parties have liberty to apply.

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

REASONS FOR JUDGMENT

MURPHY J:

1    Before the Court are two related appeals; BTA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (NSD 1143/2020) and BTB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (NSD 1142/2020). The appellants are both citizens of Sri Lanka of Tamil ethnicity who arrived in Australia, by boat, without a visa, in October 2012. BTA18 is the father of BTB18 who was 14 years old at the time he arrived.

2    Both appeals are from orders of the Federal Circuit Court of Australia (as it was then known) (FCC) made 18 September 2020, in which the primary judge dismissed their applications for judicial review of a decision of the second respondent, the Immigration Assessment Authority dated 16 March 2018. The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship and Multicultural Affairs) dated 9 June 2016 refusing to grant each of the appellants a protection visa.

3    For the reasons I explain, it is appropriate to allow both appeals.

THE FACTS

4    In January 2013, BTA18 was interviewed by an officer of the Department of Immigration and Citizenship and his responses recorded in a document titled “Irregular Maritime Arrival Entry Interview” (the arrival interview).

5    Arriving in Australia as they did, each of the appellants was an “unlawful maritime arrival” as that term is defined in the Migration Act 1958 (Cth) (the Act) and therefore unable to validly apply for any visa unless the Minister exercised the discretion under s 46A of the Act to permit them to do so.

The first visa application

6    On 13 September 2013 BTA18 made an application for a protection visa for himself and for BTB18 as a member of the same family unit. The application was accompanied by a Statement of Claims dated 5 September 2013 (the 2013 statement) in which BTA18 detailed his claims that he faced a real chance of suffering serious harm if returned to Sri Lanka because he would be imputed to have an affiliation with the Liberation Tigers of Tamil Eelam (LTTE). BTA18 did not state that BTB18 also faced a real chance of suffering serious harm in Sri Lanka for that reason, but did say the following:

I fear for the future of my son. As a TAMIL he is discriminated against and doesn’t have a good future. There is no support for TAMIL people and the government treats us badly.

7    That visa application was invalid because the appellants were unable to validly apply for any visa unless the Minister exercised the discretion under the Act to permit them to do so.

The second visa application

8    By letters dated 29 June 2015 and 8 July 2015 the Department informed the appellants that the Minister had exercised his discretion under s 46A(2) of the Act to lift the bar which otherwise prevented them from validly applying for a protection visa. The letters invited the appellants to lodge a valid application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.

9    On 21 August 2015 BTA18 made an application for a Safe Haven Enterprise visa, a type of protection visa, for himself and for BTB18 as a member of the same family unit, doing so through a registered migration agent. The application forms lodged with the Department on his behalf had several relevant parts.

10    BTA18 completed and lodged a Part B (Form 790B) on 21 August 2015, which carried the heading “Persons included in this application and family composition”. Under the heading “Details of persons included in this application” he included BTB18’s details. A note on that page of the form states: “Each applicant who is raising their own claims for protection must complete Questions 89 to 97 when they complete Part C”. BTA18 included BTB18’s details and indicated by ticking the relevant boxes that BTB18 was not raising his own claims for protection, but that BTA18 was. The form included a declaration signed by both BTA18 and BTB18 dated 6 August 2015 to the effect that the information set out in Part B was true and correct.

11    BTA18 also completed and lodged a Part C (Form 790C) on 21 August 2015, which carried the heading “Personal details for each person included in this application”. He set out his personal details and expressly stated (at Q. 88) that he made his own claim for protection. In support of that claim he attached a statement dated 6 August 2015 (the 2015 statement) which was directed at showing that he faced a real chance of suffering serious harm if returned to Sri Lanka because he is a Tamil from the Eastern Province, would be perceived as being associated with the LTTE, is a failed Tamil asylum seeker who departed Sri Lanka illegally and whose personal details had been made publicly available by an immigration data breach.

12    In his 2015 statement BTA18 claimed to be a Tamil Hindu from Trincomalee in the Eastern Province of Sri Lanka, who was married with three sons and one daughter. His claims included that:

(a)    he and his family were displaced by the civil war in Sri Lanka and in 1990 he went to a displaced persons’ camp in Mulaithivu operated by the Liberation Tigers of Tamil Eelam (LTTE) where he remained until 2003. The rest of his family relocated to a displaced persons camp in Thambala;

(b)    upon his return to Trincomalee in 2003 he was frequently stopped and harassed by the members of the Sri Lankan army, police or Criminal Investigation Department (CID);

(c)    in 2008 he was abducted by a group of Sinhalese men who put him in a white van and took him away. They held him for three days, accused him of helping the LTTE and beat him. He reported the abduction to the Sri Lankan police but nothing was done because he could not identify his abductors;

(d)    from 2008 to 2011 Sinhalese men came to his house looking for him sometimes two or three times a month. He spent most of his time indoors in hiding and his wife would lie about his whereabouts when they came looking;

(e)    in 2011 his wife was told by Sinhalese men that he was required to report to a notorious army camp. Rather than doing so he went into hiding by moving around and staying between his mother’s and relatives’ houses; and

(f)    in 2012 he fled to Australia, with one of his young sons.

In relation to BTB18 the statement said: “I was particularly worried about twin boys as they were getting nearer to adulthood I was afraid that they too may be targeted by the authorities”.

13    BTB18 also completed and lodged a Part C (Form 790C), I infer with the assistance of his father, on 21 August 2015. BTB18 signed the Part C, and said (at Q. 102) that he had assistance to complete the form. He was 16 years old at that time, and a high school student. He set out his personal details and expressly stated (at Q. 88) that he did not make his own claim for protection. He did not attach a statement detailing a claim that he would face a real chance of suffering serious harm on return to Sri Lanka Sri Lanka, nor did he indicate that he wished to rely on anything said in BTA18’s 2013 or 2015 statements.

14    By letter dated 28 August 2015 the Department acknowledged that both BTA18 and BTB18 had made valid visa applications.

The delegate’s decision

15    On 28 October 2015 a delegate of the Minister interviewed BTA18 in relation to the visa applications.

16    On 11 November 2015, BTA18 made post-interview submissions which, at least in part, were aimed at refuting a suggestion by the delegate that, because the Sri Lankan civil war had ended, the government would no longer have an adverse interest in him. He made no suggestion that BTB18 made his own claims for protection.

17    On 9 June 2016 the delegate decided not to grant the appellants a protection visa. The delegate’s decision shows that BTA18’s application was decided upon different grounds to BTB18’s application, which reflected the different grounds upon which those applications were made. The delegate did not accept that BTA18 faced a real chance of suffering serious harm if returned to Sri Lanka and therefore found (at [1]) that he was not a person in respect to whom Australia had protection obligations under s 36(2)(a) or (aa) of the Act. In relation to BTB18, the delegate found (at [155]) that he was a member of the same family unit as BTA18 and described him as an “applicant who is a member of the family unit but not making specific claims”. The delegate said (at [156]):

As I have refused to grant a Protection visa to …[BTA18], I also refuse to grant a Protection visa to … [BTB18], who is a member of the same family unit included in the application on the basis that they do not satisfy section 36(2)(b) or (c) of the Act.

The 2016 Authority decision

18    On 14 June 2016, the delegate’s decision was referred to the Authority for review as a “fast track reviewable decision” under Part 7AA of the Act.

19    On 4 July 2016 BTA18 provided a letter to the Authority which contained some “new information” within the meaning of s 473DD of the Act.

20    On 25 July 2016 the Authority declined to consider the new information, and decided to affirm the delegate's decision not to grant visas to the appellants.

The first application for judicial review

21    On 18 August 2016 the appellants applied to the FCC for judicial review of that decision, including by alleging that the Authority erred in its approach to the new information. By a judgment delivered on 6 March 2017 the FCC dismissed that application.

22    On 21 March 2017, the appellants appealed that judgment to this Court. On 29 November 2017, the Full Court upheld the appeal and made orders to remit the appellants’ visa applications to the Authority for re-determination according to law: CHFI6 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148 (Gilmour, Robertson and Kerr JJ).

The 2018 Authority decision

23    The Authority reconsidered the appellants’ visa applications on remittal. On 16 March 2018 the Authority again declined to consider the new information, albeit for different reasons. The Authority again affirmed the decision of the delegate not to grant visas to the appellants.

The second application for judicial review

24    On 6 April 2018, the appellants applied to the FCC for judicial review of the 2018 Authority decision.

25    On 18 September 2020 the primary judge dismissed both applications for review.

THE APPEALS TO THIS COURT

26    On 16 October 2020 each of BTA18 and BTB18 filed notices of appeal to this Court.

27    By interlocutory application dated 28 and 29 July 2023 they each seek leave to amend their notices of appeal.

28    BTA18 seeks leave to withdraw the existing grounds and instead to allege two grounds, being that:

(1)    the primary judge erred (at [70]) in failing to find that the Authority misconstrued s 473DD(b)(ii) of the Act when deciding whether to consider the new information; and

(2)    in reasoning to a conclusion that the appellant had fabricated his central claim to have been abducted in 2008 at [52], the Authority made findings that were unsupported by or misconstrued, evidence such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.

BTA18 did not advance Ground 2 before the FCC and he requires leave before he may do so for the first time on appeal. The Minister opposes a grant of leave.

29    BTB18 seeks leave to amend his notice of appeal to advance two further grounds, so that it advances the following seven grounds. He alleges that the primary judge erred:

(1)    in failing to find that the Authority failed to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) of the Act;

(1A)    in finding that there is no claim for protection by BTB18 raised clearly or squarely on the material before the Authority;

(2)    in failing to find that the Authority made an error of law in that it misconstrued the concept of “credible personal information” under s 473DD(b)(ii) of the Act;

(3)    in failing to find that the Authority made an error of law in that it misconstrued the concept of information that “could not have been” provided to the Minister before the Minister made the decision under s 65 for the purposes of s 473DD(b)(i) of the Act;

(4)    in failing to find that the Authority made a jurisdictional error in the manner in which it determined its obligations under s 473CC of the Act by failing to separately consider his claim from that of BTA18;

(5)    at [70] in failing to find that the Authority misconstrued s 473DD(b)(ii) of the Act when deciding whether to consider the new information;

(6)    in reasoning to a conclusion that BTA18 had fabricated his central claim to have been abducted in 2008 at [52], the Authority made findings that were unsupported by or misconstrued, evidence such that the decision was seriously lacking in foundation, irrationality, and logical coherence in a way that was legally unreasonable.

30    BTB18 did not advance Ground 6 of BTB18’s appeal before the FCC and he requires leave before he may do so for the first time on appeal. The Minister opposes a grant of leave.

Leave to rely on fresh grounds of appeal

31    Except in relation to Ground 2 of BTA18’s appeal and Ground 6 of BTB18’s appeal which were not advanced before the FCC, the appellants’ amendment applications are not opposed. For the grounds other than the fresh grounds of appeal, it is appropriate to allow the amendments sought.

32    Different considerations apply in relation to grounds which are proposed to be advanced for the first time on appeal, and where the Minister opposes the proposed amendments. Recently, in CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1003 at [39]-[49] I discussed the authorities in relation to leave to advance a ground for the first time on appeal. As I said there, the starting point is that it is important to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. However, where a fresh ground of appeal could not have been met by calling evidence in the hearing below and would not have resulted in the case being differently conducted, an appellate court has a discretion to permit an appellant to argue the new issue on appeal where it considers it to be expedient and in the interests of justice to entertain the issue: Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). Generally speaking, the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

33    The Full Courts in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] (Kiefel, Weinberg and Stone JJ), and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166]-[167] (Madgwick J, with whom Conti J agreed) discussed the relevant principles in the context of migration appeals. In NAJT (at [166]) Madgwick J set out a useful non-exhaustive list of considerations that may be relevant to a grant of such leave. In VUAX at [48] the Full Court explained:

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

34    For the reasons I now turn to explain, I consider it is expedient and in the interests of justice to grant leave for BTA18 to bring Ground 2, and for BTB18 to bring Ground 6, for the first time on appeal.

35    I do so, first, because the proposed fresh grounds concern whether on a fair reading the Authority’s reasoning to a conclusion that BTA18 had fabricated his central claim to have been abducted in 2008 shows legal unreasonableness. Those grounds could not have been met by calling evidence below, and would have resulted in the case below being differently conducted.

36    Second, similarly to CFC16, BTA18 claims that there is a real chance that he will suffer serious harm or death if he is refused a visa and must return to Sri Lanka. In deciding whether or not to grant leave it is important to take into account the serious consequences that may attend the wrongful refusal of a protection visa: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] (Branson J); SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [9] (Flick J); CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 at [36] (Murphy, Mortimer and O’Callaghan JJ); and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [56]-[58] (Mortimer J).

37    Third, the merit of the proposed fresh ground is of central importance. Generally speaking, it is likely to be “in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law”: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] Mortimer J (as her Honour then was), approved in Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 53 at [69] (Thomas, O’Bryan and McElwaine JJ). The Minister accepted that the question of merit is fundamental in relation to leave. 

38    In assessing the merit for the purposes of a grant of leave, it is enough that, assessed impressionistically, I consider the proposed fresh grounds of appeal have a “reasonable prospect of success”, are “reasonably arguable” or that the appellants have raised “a respectable argument”: Iyer at [24]; NAJT at [167]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 140 at [13]-[14] (Yates, Bromwich and McElwaine JJ).  I consider that Ground 2 of BTA18’s appeal and Ground 6 of BTB18’s appeal are reasonably arguable. Indeed, for the reasons I later explain, I consider it appropriate to uphold the appeals on the basis of the new grounds.

39    Fourth, BTA18’s solicitor, Michaela Byers, deposed that the new ground was informed by case law post-dating that hearing. I do not accept that the new ground is informed by case law post-dating the application below. As the Minister submits, the principles regarding legal unreasonableness are well-established and there has been no change in them in the period since the appellants’ visa applications were decided by the Authority. On the state of the law as it then was, had the appellants wished to argue that the Authority’s decision showed legal unreasonableness they could easily have raised that ground before the primary judge.

40    However, I accept Ms Byers’ evidence that she did not discuss a legal unreasonableness ground with counsel briefed in the hearing before the primary judge. Contrary to the Minister’s submissions, that tends to show that BTA18’s lawyers did not make a forensic choice not to allege legal unreasonableness below. The most likely explanation is that they overlooked the ground. BTB18 said nothing by way of explanation for the failure to allege this ground below. In my view it is clear enough that, in his appeal, this ground is simply copied from Ground 6 in BTA18’s appeal. Perhaps all that can be said by way of explanation in relation to the proposed new grounds is that the significance of the grounds was not apparent to the appellants’ lawyers in the hearing below. But that does not necessarily mean that it is appropriate to refuse leave to bring the ground: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J); approved in CGA15 at [37]; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 at [117] per O’Bryan J, with whom Katzmann J agreed at [1].

41    As I said in CFC16, I am reluctant to refuse leave to advance a reasonably arguable ground of appeal merely because there is no reasonable explanation for the failure to advance it earlier, or the explanation is only that there has been a change of legal representation. And, as I have said the proposed new grounds have reasonable prospects of success. After all, the function of this Court on judicial review, including on appeal, is to ensure that the exercise of administrative power occurs lawfully and by a fair process, especially where it affects the rights and interests of an individual, and where BTA18 claims that he faces a real risk of suffering serious harm or being killed if he is returned to Sri Lanka: see CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [14] (Mortimer J, as her Honour then was).

42    Fifth, as I said in CFC16, I accept that if leave is granted to advance the proposed new grounds for the first time on appeal, the Minister’s only right to appeal is by way of an application for special leave to the High Court. The Minister will therefore be denied a level of appellate scrutiny: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] (Perram J). That involves some prejudice to the Minister, and may give rise to some wastage of court resources and costs. But I do not consider that those matters outweigh the factors in favour of a grant of leave. Here, the impact on the Court and inefficiency in the use of judicial sitting time was not substantial. The fresh grounds of appeal were only one of the issues before the Court which, altogether, took only one day of hearing time.

GROUND 2 OF BTA18’S APPEAL / GROUND 6 OF BTB18’S APPEAL

The grounds

43    I commence with the two grounds raised for the first time on appeal; Ground 2 of BTA18’s appeal and Ground 6 of BTB18’s appeal.

44    In Ground 2 of his appeal BTA18 alleges:

In reasoning to a conclusion that the appellant had fabricated his central claim to have been abducted in 2008 at [52], the Authority made findings that were unsupported by, or misconstrued, evidence such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.

Particulars

a)    The Authority found there were a “number of inconsistencies in the applicant’s account of the 2008 abduction” at [28]: these findings involved misconstructions of the evidence, including:

i.    The ‘inconsistency’ at AB p 347 at [29] regarding who the appellant thought was behind his abduction was based upon his arrival interview, when he said he suspected they “might be CID” rather than starting it was “CID”: AB p 33

ii.    The ‘inconsistency’ at AB p 347 at [30] regarding the number of men who put him in a van was based upon a misreading of the evidence regarding the number of assailants (compare AB p 256[54], AB p 77 [10] – [13], AB p 181 at [11]).

iii.    The ‘inconsistency’ at AB p 347 [31] regarding the distance the appellant was released from his home after being abducted was not open on the evidence (compare AB p 77 at [16] and AB p 181 at [13]), and the ensuing finding it was not credible that he walked home after being badly beaten and held for 3 days was speculative and without proper evidentiary basis.

iv.    The fact the appellant did not mention that “the day after I came home my wife and I went to the police station but they did not help” (AB 182 of [16]) in his 2013 statement as he did in his 2015 statement did not render his statements inconsistent, contrary to the Authority’s finding at AB p 347 [32].

v.    The Authority inferred that the appellant had been inconsistent in his evidence that he was questioned about his distant relative rather than his cousin at [33], when he consistently claimed he was questioned about his relative, …[Mr S], whom he identified by name in each of the statements (compare AB p 77 at [14] and AB p 181 at [12]).

vi.    It was unreasonable for the Authority to find an inconsistency between statements that witnesses to the abduction had told his brother-in-law as opposed to his brother-in-law and his wife, which were not incompatible: at AB p 347 at [34].

b)    The Authority did not meaningfully evaluate the significance of each inconsistency, and rather purported to address the inconsistencies globally at AB p 347 at [37], reasoning “while I accept some of these inconsistencies are minor and the claimed events occurred some time ago, there were a number of inconsistencies and it was the applicant’s central claim and incident”.

c)    The Authority’s methodology for rejecting the abduction claim was based upon the number of inconsistencies, and comprised stringing together insignificant and/or bogus inconsistencies in lieu of properly evaluating the significance of each in relation to the claim.

d)    Although the inconsistencies were not the only factors relied on by the Authority, the reasons make it plain that the number of (so-called) inconsistencies were critical considerations that tainted its conclusions to reject the 2008 abduction claim, which could realistically have deprived the appellant of a successful outcome.

45    Ground 6 of BTB18’s appeal is essentially the same.

The Authority’s reasons

46    BTA18’s protection claims may be summarised as follows (as the primary judge did at [16]):

(a)    he is a married Tamil Hindu, from Trincomalee, Eastern province, Sri Lanka. He has three sons and a daughter (I note that the Second Applicant is a twin whose brother remains in Sri Lanka);

(b)    in 1990 his family was displaced due to the conflict. His family relocated to displaced persons camp at Thambala. His father was abducted in 1990 whilst at a refugee camp. The family believe he has been murdered;

(c)    the First Applicant went to a separate camp (than his family) in Mulaithivu, operated by the Liberation Tigers of Tamil Eelam (LTTE). He remained in Mulaithivu camp until 2003;

(d)    upon return to Trincomalee, the army, police or CID frequently stopped and harassed him, approximately 6 or 7 times a month, when they would search his car, and his person, question, threaten and hit him;

(e)    although he was not a LTTE member, the LTTE sometimes made auto drivers /rickshaw drivers (like himself) display LTTE flags and posters on their vehicles; his cousin was involved with the LTTE;

(f)    in 2008, in Trincomalee, he was abducted by group of Singahelese (sic) men, who put him in a white van, and drove him about an hour away. He was beaten and accused of helping the LTTE. He was held for 3 days;

(g)    witnesses of the abduction informed his wife and brother in law who lodged complaints to UNHCR, ICRC, and HRC;

(h)    he went to the police a day after he was released but they could not help as they could not identify who abducted him. He went to the hospital, but discharged himself after receiving treatment for his injuries because he was worried about 2 men who were hanging around the hospital who he suspected might have been CID. He left via the back entrance of the hospital with his wife. They lodged a further complaint with the UNHCR. He noticed men in black following them on their way there. He notified the UNHCR of what happened to him;

(i)    between 2008 and 2011, the First Applicant remained in hiding in his home. Sinhalese people came looking for him at his home, sometimes 2 or 3 times a month. His son was questioned, and his wife lied about his whereabouts. His family was continually harassed;

(j)    in 2011, unknown men told his wife that he had to report to Plantain Port, a notorious army camp. He decided to move to another area. From 2011 until his departure to Australia he moved around, staying between relatives’ houses;

(k)    in 2012, he made his way to Australia with his son, the Second Applicant;

(l)    since his departure, his wife and family have been harassed by people. They have visited his home and questioned his wife, most recently 4 months ago (being around April 2015). His wife tells him she is afraid, and feels like she is constantly being watched. She no longer allows her son to attend classes in the evening as she is afraid he may be abducted; and

(m)    he claims to fear harm from the Sri Lankan government or non-state agents connected to the government because he is a Tamil, imputed as a supporter of the LTTE, as a failed asylum seeker who departed Sri Lanka illegally, and by reason of the Australian government’s data breach when it released personal information about him and his son.

47    In relation to those claims the Authority concluded as follows (at [52]):

I do not accept that the applicant was abducted in 2008 or that anyone was looking for him or that the applicant was in hiding from 2008. I consider the applicant has fabricated those claims. It follows, I do not accept that anyone visited his home subsequently looking for him or stopped one of his sons on the way from school or that anyone is interested in the applicants.

48    It centrally based that conclusion on its reasons (at [28]-[37], where it said the following:

2008 abduction

28. The applicant claimed he was abducted in August 2008. There are number of inconsistencies in the applicant’s account of the 2008 abduction. In his 2013 statement and arrival interview he stated he was abducted on 2 August. However, in his 2015 statement he claimed it was on 7 August and he had made a mistake on the date in his arrival interview. However, the applicant had also stated the abduction was on 2 August in his 2013 written statement.

29. His description of abduction and release was not consistent. For instance in his 2013 and 2015 statements he did not know who abducted him, but in his arrival interview he claimed it was CID.

30. Further, at the protection interview he claimed four men in white shirts put him in the van, but in his statements it was two men.

31. In his 2013 statement he was released half kilometre from home, but in his 2015 statement he claimed he was released 3 to 4 kilometres from home. Further, it is not credible that he walked home after being badly beaten and held for 3 days.

32. In his 2015 statement he went to the police station before went to the hospital. However, in his 2013 statement he went to the hospital and the following day he went to UNHCR and did not mention he reported to the police.

33. In his 2013 statement he said he was questioned about his distant relative, but in his 2015 statement and interview it was about his cousin. Further, while he mentioned being questioned because his name was in the relative’s address book, this was not mentioned in his 2015 statement.

34. In one statement he claimed witnesses to the abduction told his brother in law, but in another statement applicant 1 claimed the witness contacted his wife and brother in law.

35. In 2008, the applicant applied to other countries, including Australia, to leave Sri Lanka as a result of the abduction and his fear. However, his Australian visa application noted he had been abducted in 2007. At interview, applicant 1 suggested it may have been a mistake by his wife, who completed the application or a mistake by the person assisting with the application. It is difficult to believe that there was such a fundamental difference, particularly given his abduction was the only event. | do not accept (even if they received assistance with the application) that his wife would forget or make a mistake as to the year, particularly given the claimed abduction and application occurred in 2008, the same year.

36. The applicant’s account of his motivation for moving to his mother’s home in 2011 was inconsistent. In his 2013 statement he claimed he went to stay with his mother in Thampalalam Kammam after his son was questioned by CID on Forest road about applicant 1’s whereabouts and they threatened the applicant would never been seen again if he did not surrender. However, in his 2015 statement applicant 1 stated he moved after men visited the family home and told his wife he needed to report to Plantain point camp.

37. While | accept some of these inconsistencies are minor and the claimed events occurred some time ago, there were a number of inconsistencies and it was the applicant’s central claim and incident. Further, the applicant’s account at interview lacked details and repeated how he was taken by persons in black and a white van, but provided little other information about the event itself.

The appellants’ submissions summarised

49    The appellants contend that the Authority erred in identifying a number of asserted “inconsistencies” in BTA18’s central claim that he was abducted in 2008, and then went into hiding, and then relied upon those erroneous factual findings as the foundation for its decision not to accept his central claims on the basis that they were “fabricated”. They argue the findings of inconsistency were not open on the evidence, or any inconsistency was inconsequential, and not rationally capable of founding the conclusion BTA18’s account of his central claims was untruthful. They argue that the Authority also erred by failing to evaluate the asserted inconsistencies and to consider the weight to be attributed to them, and by failing to explain why the inconsistencies it found were of sufficient significance to sustain a conclusion that BTA18 was not telling the truth in his central claim and had instead entirely “fabricated” it.

50    I note here that BTB18’s application is (at least in part) derivative of his father’s application. That is, if BTA18 is granted a protection visa then BTB18 may be entitled to a visa as a member of the same family unit.

The Minister’s submissions summarised

51    The Minister argues that even if the inconsistencies found by the Authority show error that is insufficient to vitiate the Authority’s conclusions (at [52]) that BTA18 was not abducted in 2008; that no one was looking for him; and that BTA18 was not in hiding from 2008. Of the list of inconsistencies found by the Authority, and relied upon by the appellants as erroneous, the Minister only accepts that two were in error.

52    The Minister relies on Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] (Allsop CJ, Besanko and O’Callaghan JJ) and submits that “the characterisation of a decision or state of satisfaction as legally unreasonable because of illogicality or irrationality is not easily made”, and that legal unreasonableness will be made out only where “it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material”. The Minister also notes that in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] Kiefel CJ described the test for establishing legal unreasonableness as “necessarily stringent”, and Gageler J (as his Honour then was) at [52] described the test as having an “extremely confined” scope and being “context specific”.

53    The Minister contends that the appellants face a “very high bar” to show that the asserted fact-finding errors, sitting behind the adverse credibility finding regarding BTA18, rise to the level of jurisdictional error. On the Minister’s argument, this case is quite unlike DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [40] (Kenny, Kerr and Perry JJ), where the Full Court held that the rejection by the AAT of the evidence of 16 witnesses on the basis that because they were known to the applicant they could not be “independent” was legally unreasonable.

54    The Minister also notes that the Authority accepted (at [37]) that many of the inconsistencies it identified were minor, and argues that on a fair reading it was not the case that the minor inconsistencies led to the rejection of the appellant’s central claim. On this argument the rejection of BTA18’s claims must have been based on the other concerns the Authority identified, including the lack of detail in those claims. The Minister submits that nothing in the Authority’s credibility assessment reaches the high threshold of being legally unreasonable.

55    The Minister argues that the appellants’ reliance on EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 (Stewart J) is misplaced, and says that the finding in that case that it was legally unreasonable to describe the differences in accounts as “inconsistencies” says nothing about the process of reasoning in the present case. The Minister also says that the discussion in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [37]-[45] (Griffiths, Mortimer and Steward JJ) as to the meaning of the word “inconsistency” is of no assistance to the review of fact-finding in this case.

56    The Minister contends that Ground 2 of BTA18’s appeal and Ground 6 of BTB18’s appeal are no more than an impermissible attempt at merits review and cannot succeed.

Consideration

57    This Court has said many times that adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis: see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [38] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [83(d)] (Griffiths, Perry and Bromwich JJ); DAO16 at [30]; DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [20] (Tracey, Murphy and Kerr JJ); BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [33]-[34] (Perram, Perry and O’Callaghan JJ); BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [34] (Murphy and O’Bryan JJ).

58    The relevant principles in relation to legal unreasonableness were usefully summarised in DAO16 (at [30]). The Full Court explained:

(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added)

(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

59    In the present case, the inconsistencies the Authority found and relied upon for its conclusion that BTA18 had fabricated his central claims were reached by a process in which the Authority purported to compare the accounts BTA18 gave in his arrival interview, in his 2013 statement, in his 2015 statement and in his protection interview with the delegate in 2015.

60    In remarks which are equally true today, more than 20 years ago, in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15] Lee, Carr and Finkelstein JJ explained as follows:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

61    Similarly to this case, AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 (Kenny, Griffiths and Mortimer JJ) was concerned with inconsistencies that were found to exist between a visa applicant’s written and oral claims. The Full Court said the following (at [23]):

A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.

62    Their Honours explained (at [27]) that “the term ‘inconsistency’ should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis.” Their Honours then went on to say (at [28]):

…even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

63    AVQ15 was endorsed in ASB17 at [42]-[45] (Griffiths, Mortimer, as her Honour then was, and Steward JJ). Their Honours said:

[42]    Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

[43]    On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

The effect of inconsistencies

[44]    Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

[45]    It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

64    In the present case the Authority identified what it described (at [28]) as “a number of inconsistencies” in BTA18’s account of the claimed 2008 abduction. It accepted (at [37]) that some of the inconsistencies were minor, and that the discrepancies might have arisen because the claimed events occurred some time ago. But in deciding that it was appropriate to rely on the inconsistencies it found, the Authority said that “there were a number of inconsistencies and it was the applicant’s central claim and incident”. Centrally on the basis of the inconsistencies it found, the Authority then went on to conclude (at [52]) that it did not accept that BTA18 was abducted in 2018, that anyone was looking for him, or that he was in hiding from 2008.

65    I consider that the Authority’s reasoning to its conclusion (at [52]) that it did not accept BTA18’s central claim to have been abducted in 2008, and that as a result he went into hiding, reveals extreme irrationality and illogicality. To explain my view in that regard it is necessary to go to the impugned findings of “inconsistency”.

The first “inconsistency”: who BTA18 said had abducted him.

66    The Authority found (at [29]):

[BTA18’s] description of abduction and release was not consistent. For instance in his 2013 and 2015 statements he did not know who abducted him, but in his arrival interview he claimed it was CID.

67    That was incorrect:

(a)    in his arrival interview in January 2013 BTA18 said “I was kidnapped by the CID”, and then when asked who he suspected had arrested him he said “They might be the CID”;

(b)    then in his September 2013 statement he said something essentially the same. He said “I suspected the men might be CID or army personnel because of their appearance. They were wearing black.” Later in the same statement he said “I have been arrested in the past and abducted by men I suspect were CID”; and

(c)    then in his August 2015 statement he said that he was driving in Trincomalee when he was stopped and abducted by a “group of Sinhalese man who were all wearing black”.

68    BTA18’s answer in the arrival interview was somewhat equivocal. He indicated that it was not clear to him who his abductors were, but he suspected they were CID personnel. Contrary to the Authority’s finding, that is different from BTA18 saying at that time that he knew who had abducted him. Further, in his 2013 statement BTA18 did not say he did not know who abducted him, what he said was that he suspected the men might be CID, which was the same as what he said in the arrival interview. Then, in his 2015 statement BTA18 did not say whether he suspected that his abductors were CID or not, he simply described them as being men wearing black.

69    BTA18’s answers were essentially consistent, and the finding that they were materially inconsistent was not open on the evidence. Further, as stated in ASB17 at [43], for the Authority to rely upon that asserted inconsistency as part of the basis for concluding that BTA18 was not telling the truth in relation to his central claim, it was necessary for the Authority to explain why it was of such a nature as to justify rejecting his account as “fabricated”. The Authority did not do so.

The second “inconsistency”: how many men BTA18 said had abducted him.

70    The Authority found (at [30]) that in the delegate’s interview of BTA18 on 28 October 2015 BTA18 “claimed four men in white shirts put him in the van, but in his statements it was two men”.

71    Again, there is no basis in the evidence for that finding.

72    First, in setting out BTA18’s claims the delegate did not say that BTA18 told him that “four men in white shirts put him in the van”. The delegate summarised BTA18’s claims in relation to that incident (at [54]), as follows:

He stated that on 7 August 2008 whilst driving his auto rickshaw he was stopped by two men and was asked to take them to a nearby café but he refused their request. Soon after a white van appeared and the men forced him into the van and took him to an unknown place.

All the delegate said was that BTA18 claimed that he was stopped by two men, and then a white van turned up and “the men forced him into the van”. There is no evidence that BTA18 told the delegate that the group of men who forced him into the van comprised "four men in white shirts".

73    Second, BTA18 did not in either his 2013 or 2015 statement limit the number of men involved in his abduction to two (although he did say that only two of them pulled him into the van).

74    In his 2013 statement he said:

I was stopped by several SINGHALESE [sic] men waiting on COURT Road in TRINCOMALEE. The man hailed me to stop the Auto I was driving and asked me to take them to COOL BAR (a cafe).

I suspected the men might be CID or army personnel because of their appearance. They were wearing black.

…I refused to take the men in my auto but a van stopped and I was pulled into the van by two men wearing white shirts. My hands were tied and I was blindfolded; and I was taken to an unknown location.

75    In his 2015 statement he said:

…I was driving my Auto along Court road in Trincomalee. I was stopped by a group of Singahelese [sic] men who were all wearing black, they stood in the middle of the road so that I could not pass them. One of them got into my Auto, he put his arm around my neck and asked me to take him to a café. I told him that my Auto was not available for hire and I asked him to get out. While this was going on a white van pulled up in front of the Auto, blocking my path. Two people got out of the van and pulled me off my Auto and put me inside the van. Once I was inside the van they blindfolded me and tied my arms together.

76    As is apparent, in his 2013 statement he said that he was stopped by “several” men wearing black on the road, and then a van pulled up and he was pulled into it by two men wearing white shirts. That tends to indicate that at least four men were involved in his abduction (with two of them pulling him into the van). In his 2015 statement he said that he was stopped by a “group” of men wearing black on the road, and then a van pulled up, two men got out and pulled him into the van. Again, that indicates the involvement of at least four men (with two of them pulling him into the van).

77    As BTA18 submits it was not reasonably open to the Authority to find that BTA18 told the delegate that the group that forced him into the van comprised “four men in white shirts”. Nor was it reasonably open to the Authority to find that BTA18’s 2013 and 2015 statements were inconsistent with what he told the delegate. BTA18’s account of his abduction was not as confined as the Authority said it was.

The third “inconsistency”: the distance from where BTA18 was released from the abduction.

78    The Authority found at [31]:

In his 2013 statement he [said that] he was released [a] half kilometre from home, but in his 2015 statement he claimed he was released 3 to 4 kilometres from home.

79    Again, the Authority’s finding of an “inconsistency” is not founded in the materials before it:

(a)    in his 2013 statement BTA18 said:

They released me by taking me again in the van and dropped me around half a kilometer from Kottai, near the army camp. I walked home and the following day I was admitted into hospital.

and

(b)    in his 2015 statement BTA18 said:

They left me on the side of the road…near to the old Kottai or fort in Trincomalee, which was right next to an army base and a beach. This was around 3 to 4 kilometres from my house so I was able to make my way home.

80    Those two accounts are not inconsistent, and there is no basis in the evidence for the Authority’s finding of inconsistency. It appears that the Authority misunderstood BTA18’s 2013 statement by conflating Kottai, the location near where he was dropped by his claimed abductors, with the location of his house. It provides no support for the significant finding that BTA18 was untruthful in relation to his central claims.

The fourth “inconsistency”: asserted difference in BTA18’s accounts as to when he went to the police station following his release from abduction

81    The Authority found (at [32]):

In his 2015 statement he went to the police station before [he] went to the hospital. However, in his 2013 statement he went to the hospital and the following day he went to UNHCR and did not mention he reported to the police.

82    In his 2015 statement, BTA18 said:

The day after I came home my wife and I went to the police station but they did not help…Then she took me to the hospital.

83    It is true that in his 2013 statement BTA18 said only that “the following day I was admitted into hospital”, and he made no mention of going to the police. But the fact that one account includes a detail that the other account does not include does not necessarily mean that the two accounts are inconsistent. On BTA18’s account, going to the police did not bear any fruit as he could not identify his abductors to the police, and the police said they could not further investigate. In those circumstances, BTA18 may have considered his visit to the police to be unimportant. As stated in ASB17 at [42] “[d]iffering accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have a different emphasis. One may include a particular incident that another does not”.

84    Further, as explained in ASB17 at [43], for the Authority to rely upon BTA18’s failure to mention a fruitless visit to the police as part of the basis for concluding that BTA18 was not telling the truth in relation to his central claim, it was necessary for it to explain why that asserted inconsistency (which if it existed was quite minor) was of such a nature as to justify rejecting his account as “fabricated”. It did not do so.

The fifth “inconsistency”: differences in the accounts given as to which relative BTA18 was questioned about and mention of an address book

85    The Authority found (at [33]):

In his 2013 statement he said he was questioned about his distant relative, but in his 2015 statement and interview it was about his cousin. Further, while he mentioned being questioned because his name was in the relative’s address book, this was not mentioned in his 2015 statement.

86    In his 2013 statement BTA18 said, in relation to the questioning which followed his claimed abduction:

I was kept for a few hours and beaten. They asked me whether I was involved in the LTTE. They also showed me the identification of a person …[Mr S] they suspected was an LTTE member. The (sic) said my details (name; address and phone number) were found in that person’s diary, so wanted to know what my association was to that person. I told them that he was a distant relative but that I didn’t have any contact with him.

87    In his 2015 statement he said:

One of my cousins, … [Mr S], was involved in the LTTE, they kept asking me where he was. I had not had any connection with him for many years…

88    In relation to the first asserted inconsistency it is clear that in both statements BTA18 was referring to the same relative, whom he expressly named, and save for a minor difference in the spelling of “Mr S’s name” it is obviously a reference to the same person. There is no basis in the evidence for the finding of inconsistency, nor for treating it as part of the reason for finding that BTA18 had fabricated his central claim.

89    Turning to the second asserted inconsistency which concerns the mention of the relative’s address book in the 2013 statement and not the 2015 statement; again I note that differing accounts of the same event may not actually be inconsistent: ASB17 at [42]. In my view the 2013 statement simply contains an additional and relatively minor detail about the line of questioning; again, it was necessary for the Authority to explain why that difference was sufficient as to justify impugning BTA18’s account and it did not do so.

The sixth “inconsistency”: differences in BTA18’s account as to who told his wife and brother-in-law about his abduction

90    The Authority found (at [34]):

In one statement he claimed witnesses to the abduction told his brother in law, but in another statement…[BTA18] claimed the witness contacted his wife and brother in law.

91    In his 2013 statement BTA18 said “witnesses told my brother in law I was abducted… My wife went with the children and my brother in law to report to the UNHCR, HUMAN RIGHTS and ICRC that I was kidnapped.”

92    In his 2015 statement he said that “[s]ome people who had witnessed me being abducted contacted my wife and brother in law and told them what had happened.”

93    As discussed earlier, that does not necessarily mean that the two accounts should be seen as inconsistent. On its face the 2015 statement is a more detailed account. One statement about an event may be more detailed than another statement, and that will not necessarily mean the statements conflict. In any event the distinction on which the Authority relies for the finding of inconsistency is trivial. It was necessary for the Authority to explain why that minor distinction was of such a nature as to justify rejecting BTA18’s account as untruthful, and it did not do so: ASB17 at [43].

The seventh “inconsistency”: differences in BTA18’s account as to why he moved to his mother’s house

94    The Authority found (at [36]):

The applicant’s account of his motivation for moving to his mother’s home in 2011 was inconsistent. In his 2013 statement he claimed he went to stay with his mother in Thampalalam Kammam after his son was questioned by CID on Forest road about …[BTA18’s] whereabouts and they threatened the applicant would never been [sic] seen again if he did not surrender. However, in his 2015 statement …[BTA18] stated he moved after men visited the family home and told his wife he needed to report to the Plantain point camp.

95    Here, the Authority’s summary of the relevant part of the 2013 statement is incomplete and somewhat misleading. In that statement he said that, following his release from abduction:

After that, as much as possible, I stayed in my house, too afraid to leave. Men came to my house on several occasions between 2008 and 2011. My wife answered the door but they didn’t come in. She told them I travelled to MULAITHIVU.

The men told her I must report to PLANTAIN POINT camp, which is any [sic] army camp, so I suspected the men were CID or army personnel. Other Tamils who have been taken to Plantain Point camp were rarely seen again.

In 2011, my eldest son was questioned by CID on Forest Road, when he was walking to school. The men wanted to know my whereabouts. My son told them he didn’t know - only that I had left for MULAITHIVU. The men threatened to my son that I should surrender myself or, if they catch me I will never be seen again.

After that I decided to go to stay with my mother in THAMPALLAM KAMMAM. I moved between my mother’s house and siblings’ houses…

96    On a fair reading, BTA18 said that he made his decision to move to his mother’s house after “men” repeatedly visited his house and enquired about his whereabouts, told his wife that he must report to Plantain Point camp, and questioned his eldest son about his whereabouts and made threats against BTA18. He did not say that his decision to go and stay with his mother was solely because his son was questioned and threats were made against him.

97    The same can be seen in BTA18’s 2015 statement where he said:

I remained in hiding and my family were continually harassed. In 2011, I cannot recall the month, some unknown men came to my home and told my wife that I had to report to Plantain Point. This is a well known army camp by the sea which is notorious in the area, many Tamils have been taken there and never heard from again. They said that if I did not report to them, then the next time they saw me that [sic] would take me away and my family would never see me again. After this threat I decided I had to move to another area, so I went to Thampallam Kammam to stay with relatives including my mother, aunts and sisters. I would move around between their houses.

98    Again, on a fair reading, BTA18 did not say that his decision to go and stay with his mother was solely because “men” had come to his house and told his wife that he had to report to Plantain Point. BTA18 made the decision to do so after that was said, but also in the context of his family being “continually harassed”, which could also be a reference to the questioning of his son.

99    In my view, in the absence of further analysis which did not occur, the different points of emphasis in the two statements did not warrant a finding of inconsistency, let alone for the Authority to treat that as part of the basis for concluding that BTA18 was lying in relation to his central claim. Again, the Authority failed to explain why that asserted inconsistency (which if it existed was trivial) was sufficient to impugn his account.

100    There were also some further aspects of the Authority’s fact-finding, which it did not describe as inconsistencies, upon which it based its conclusion (at [52]) that it did not believe BTA18’s claims to have been abducted, that anyone was looking for him, or that he went into hiding. I now turn to deal with those:

Whether BTA18 could have walked home after the abduction and assault

101    The Authority found (at [31]) that “it is not credible that he walked home after being badly beaten and held for 3 days” and (at [39]) that:

It is difficult to believe that the applicant did not attend the hospital until 2 days after his release, this is particularly so given the diagnosis ticket notes he had difficulty walking. Further, it is difficult to believe that if he had difficulty walking on 11 August because of his injuries, that he could have walked home 3 or 4 kilometres after the assault on 9 August.

102    There is no basis on the evidence for Authority’s finding that it was not credible that BTA 18 walked home three to four kilometres after he was released. There is nothing in the evidence to show that BTA18’s injuries were such that it was not credible that he could walk three to four kilometres to get home, when doing so would obviously have been imperative for him. It is just speculation. The only relevant reference in the diagnosis ticket is to BTA18 having “difficulty walking on 11 August because of his injuries”. That is not probative of him being unable to walk at all or being able to walk far enough to get home. More particularly, that finding does not provide a reasonable foundation for the finding that BTA18 had fabricated his central claims.

Whether BTA18 has been beaten based upon when he underwent a cardiac procedure

103    The Authority found (at [40]) that:

…the applicant provided an ASD device closure cardiology report Colombo, which indicated … [that BTA18] underwent a procedure to close holes in his heart on 16 June 2008. I find it difficult to believe that if he was suffering from being beaten and difficulty walking on 11 August that he was well enough to attend the cardiac procedure in Colombo five days later.

104    Again, that finding finds no basis in the evidence. In fact, the evidence was that BTA18’s cardiac procedure was on 16 June 2008 which was almost two months before his claimed abduction on 7 August 2008.

Whether BTA18 went into hiding based upon when he underwent a cardiac procedure

105    The Authority found (at [47]) that:

Further, I do not accept he was in hiding. It was evident from his documentation that he went to Colombo for a cardiac procedure on 16 June 2008. Country information indicates that checkpoints along the roads were not lifted until 2015. If he were wanted or of interest, I do not accept he could have travelled to Colombo at that time without coming to the attention of authorities.

106    Again, that finding is not based in the evidence. In fact, the appellant’s evidence was that he went into hiding after his abduction on 7 August 2008. The evidence is that he travelled to Colombo for a cardiac procedure almost 2 months before he was abducted. It provides no basis for the Authority’s conclusion that BTA18 fabricated his claim to have gone into hiding.

Conclusion regarding “inconsistencies”

107    On a fair reading of its reasons, the Authority attached the label of “inconsistency” to a series of factual findings it made, and also made other factual findings in which it doubted BTA18’s account. Then, on the basis of the cumulative inconsistencies and the other findings, it concluded that it did not believe BTA18’s claims that he was abducted in 2008, that people were looking for him and that he went into hiding.

108    The Authority did so in circumstances where many of the inconsistencies it found and doubts it expressed had no basis in the evidence, or were inconsequential. And there is nothing to indicate that the Authority assessed the significance of those findings having regard to BTA18’s case, including whether it related to a matter which was central or at the periphery and involved an objectively minor matter, nor that it gave proper consideration to the appropriate weight to give to each inconsistency it found: ASB17 at [43].

109    I consider most of the impugned factual findings were not open on the evidence. In my view the Authority’s reasoning to its conclusion that BTA18 had fabricated his central claims of being abducted, and then going into hiding shows extreme illogicality or irrationality and thus legal unreasonableness: SZMDS at [135].

110    The Minister seeks to rely upon the fact that the Authority said (at [37]) that it accepted that some of the inconsistencies were “minor”; that the claimed events occurred “some time ago”; and that the inconsistencies related to “…the applicant’s central claim and incident” and “the applicant’s account at interview lacked details.” The Minister contends that, on a fair reading, the Authority did not rely upon the “minor” inconsistencies alone for its finding that BTA18 was being untruthful in relation to his central claim, and that it also relied upon “the other concerns identified” including the lack of detail in BTA18’s account.

111    I do not accept the Minister’s submission that the Authority’s conclusion was based on the (asserted) lack of detail in BTA18’s claims. The Authority did not say that the lack of detail in BTA18’s account was important to its conclusion and the Authority’s finding that BTA18’s account lacked detail has the appearance of a “throwaway” line, following as it did, eight paragraphs in which it set out its findings of inconsistency. On a fair reading, the Authority’s decision not to accept BTA18’s central claims was made on the basis of the cumulative inconsistencies it found and its other factual findings in relation to BTA18’s account. The impugned findings were in my view erroneous.

Materiality

112    BTA18 does not seek to impugn all of the inconsistencies the Authority found, nor does he impugn all of the other factual findings it made. It might be argued that establishing that some of the impugned findings were not open on the evidence is insufficient to show that there was a realistic possibility of a different outcome in his visa application.

113    I take a different view. The assessment of credibility is not necessarily linear and such assessments often involve matters of impression: VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] (Hill, Sundberg and Stone JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] (Gleeson CJ). Adverse findings on credibility may well, expressly or implicitly, be linked with one another, such that, on review, the Court cannot be confident that an error in one strand of the credibility reasoning does not infect the other strands: SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (Lee J); AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20] (Mortimer J, as her Honour then was).

114    Here, the Authority’s reasons show that a series of inconsistencies it found, along with some other factual findings, considered cumulatively, lay behind its conclusion that BTA18’s account in relation to his central claims should not be accepted on the basis that it was “fabricated”. In turn, the rejection of BTA18’s central claims was central to the Authority’s conclusion that Australia did not owe him protection obligations and therefore to affirm the delegate’s decision not to grant him a protection visa. It was also significant to the decision that BTB18 not be granted a visa, as his application was treated as derivative. I cannot be confident that the errors I have found in the Authority’s credibility reasoning did not infect those strands of its credibility reasoning which were not impugned, and there is a realistic possibility that the Authority would have reached a different conclusion had it not made the errors that it did. As Kirby J explained in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [81]:

…..establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

115    The test for whether an error by an administrative decision-maker is “material” is whether there is a realistic possibility that the decision reached by the decision-maker could have been different had it not made the error. That is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”, which is an undemanding standard: Nathanson v Minister for Home Affairs [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ); at [46] (Gageler J, as his Honour then was). I consider the Authority’s errors to have been ‘material’ in the sense discussed in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ) and Nathanson.

116    These grounds of the appeals must be allowed.

GROUND 1 OF BTA18’S APPEAL / GROUND 5 OF BTB18’S APPEAL

The grounds

117    Ground 1 of BTA18’s appeal alleges as follows:

The Federal Circuit Court erred at [70] in failing to find the Second Respondent (the Authority) misconstrued s 473DD(b)(ii) of the Migration Act 1958 (Cth) (the Act)

(a)    s 473DD(b)(ii) of the Act provides a filtering mechanism that is part of the Authority’s preliminary decision-making about what is the complete scope of the review material, and requires only that new information is “capable of being believed”.

(b)    Despite correctly referring to this threshold at [46], the Federal Circuit Court failed to find the Authority had incorrectly applied s 473DD(b)(ii), even though the Authority incorrectly assessed the genuineness of new claims in terms of whether they were true, rather than whether they were capable of being believed.

(c)    Further and in the alternative, the Authority erred by failing to treat ss 473DD(b)(i) and 473DD(b)(ii) as alternatives; instead, the Authority treated the fact the new claims were “raised so late despite the previous opportunities” – a fact presupposed by s 473DD and addressed in 473DD(b)(ii) – as determinative of the credibility of the new information under 473DD(b)(ii), when this should have been a starting point for a broader evaluation.

(d)    These errors were material to the Authority’s decision because:

(i)    the Authority impermissibly drew conclusions about the appellant’s truthfulness on the basis of material that was, as a matter of law, not before it, which could have affected its assessment of his credibility and its finding that his central claims were fabricated: at [52] AB p 349.

(ii)    the Authority failed to properly consider the substance of the new claims themselves, as distinct from the fact that they were not made at an earlier stage of the visa application.

118    Ground 5 of BTB18’s appeal alleges the same.

The statutory framework

119    The requirements of s 473DD of the Act are central to the appeal. At all material times it provided 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.

120    The plurality in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 explained that the criterion in s 473DD(b)(ii) is met if the applicant satisfies the Authority that the new information meets the tripartite description of: credible personal information, that was not previously known, and that may have affected consideration of the applicant’s claims if it had been known. They noted at [11] that the Authority must first assess the information against the criteria in s 473DD(b)(i) or s 473DD(b)(ii), and only if one or both are met can they then consider the information against the criterion in s 473DD(a).

121    It is clear enough from the Authority’s reasons (extracted above) that (at [11]) it purported to apply the criterion in 473DD(b)(ii). It accepted that the new information was personal information. But, on the basis that the new claims were “raised so late despite the previous opportunities” it was not satisfied as to the genuineness of the new claims and explanations, and it was therefore not satisfied that it comprised “credible personal information” under the subsection. Further to that, (at [12]) the Authority said that it was “not satisfied that there are any exceptional circumstances to justify considering the information”, and (at [13]) it said that it had not considered the new information.

The new information

122    It is uncontentious that by letter dated 4 July 2016 BTA18 provided the Authority with “new information” relating to his claims, and the Authority declined to consider the new information having regard to its view as to the operation of s 473DD.

123    Relevantly to the appeals, the 4 July 2016 letter said the following in respect of the new information (with the addition of paragraph numbering for clarity and with some redactions):

(i)    I refer to the above matter and to the letter dated 9 June 2016 from the Department of Immigration and Border Protection (DIBP) and to your letter dated 15 June 2016.

(ii)    In your letter dated 15 June 2016 you attached an information sheet where you indicated that I can provide to you any new information if there are any exceptional circumstances that I can justify for you to consider. Further the information is relevant and was not provided to the DIPB when it made the decision.

(iii)    The following new information that I am providing below was not provided to the DIBP before the DIBP rejected my application and I am of the opinion that if I got the opportunity to provide the following information to the DIBP before it made the decision, it would have definitely affected the DIBP decision.

(iv)    After I attended the interview with the DIBP, I was satisfied that I would be granted protection in Australia and I would not be sent back to Sri Lanka to face harassment and torture leading to death from the Sri Lankan government authorities, Sri Lankan Tamil armed groups and from the criminal minded CID and police officers in civil who were following me and were in search to arrest me before I departed Sri Lanka.

(v)    New Information: After I arrived in Australia the above criminal minded officers had been harassing my wife and children since then. I had indicated this to the DIBP but was not taken into consideration when deciding my case. Now the situation has turned out to be more dangerous after the CID officers started to arrest my extended family members who were in Mullaitivu along with me after the conflict in 1990. My sister's family members and my wife’s family members are presently targeted by the CID officers recently. I got the information only recently before my case was rejected and hence I consider these as real evidence to be taken into consideration. My sister [redacted]'s husband [redacted] owns a cycle shop. In 2008, one of the senior army officers was shot by the LTTE cadre who was waiting at the entrance of the cycle shop while my brother in law [A-redacted] was involved in the repairs. My brother in law was arrested as the LTTE cadre escape arrest and was branded as a LTTE accomplice. In 2013, [redacted]’s case was adjourned and the CID or police or army did not proceed with the case. My elder sister is married to my wife’s brother Mr [B- redacted] who owns his own business dealing with Mechanical and Electronical repairs. My wife’s other brother [C- redacted] was also living with all of us in Mullaitivu between 1990 and 2003. The CID in Thambalakamam had arrested all three of them [A], [B] and [C] on the grounds that they had been serving in the LTTE. During the interrogation the CID officers had mentioned to them that they are aware that my son [D- redacted] and I had fled from Sri Lanka by illegal boat and they had gathered information from the DIBP as to our details in Australia. My brothers in law were taken for interrogation separately and was questioned as to their involvement in the LTTE before 2003. They had questioned them as to my involvement as well. The officers continue to interrogate them and had ordered them to report to them when they arrest me at the airport on my arrival in Sri Lanka. They have indicated that I had been serving as a LITE cadre fighting the Sri Lankan Army in the past and had escaped arrest before they confirmed my participation in the war.

(vi)    My brothers-in law were released after the intervention of the local members of the Parliament after the officers had been bribed. The CID officers are still visiting home asking whether I had returned back by illegal means into Sri Lanka. They had told them that I would be taken away and killed for escaping by illegal means and for waging war against the Sri Lankan Army. In May 2016, the CID officers had visited home and questioned my wife living in Trincomalee town as to my expected return back to Sri Lanka. The officers asked my wife why she was living in Trincomalee town when all her relatives are living in Thambalakamam. The officers knew that my wife was alone after the children left to school had visited her and had questioned my wife as to our involvement in the LTTE in the past between 1990 and 2003. My wife had repeatedly denied any involvement in the LTTE and the CID officers had sexually abused my wife. They had warned my wife to keep the matter secret and if she attempted to publicise their atrocities she would be taken away and killed. The officers had visited her repeatedly that she had to move to Thambalalkamam to evade further sexual harassment. The relatives and neighbours in Thambalakamam including the doctors are aware that the CID officers had reaped my wife. My wife attempted to suicide before the children came to realize what happened to her. My son in Australia is unaware as to these incidents and I beg and plead with you to treat this information as a secret as it could affect my children's life. My children in Sri Lanka had questioned my wife and she had managed to convince them as a false rumor, I am unable to give protection to my wife being her husband and I am mentally traumatised and depressed from the time I heard this information. The CID officers are visiting my relatives and are threatening them with imprisonment if they informed the Human Rights organization or the Red Cross or any other local or foreign media as to this atrocities. The CID had told my wife that when they arrest me on my arrival she would be left alone. They threatened my wife that if I tried to escape arrest from them my other twin son [D] would be abducted and my brothers-in-law would be taken into custody.

(vii)    There is no rule of law in Sri Lanka. The Prevention of Terrorism Act is in force and still people are taken for interrogation and some of them are murdered once it is established that they are LTTE supporters in the past. Many innocent Tamil youths and LTTE supporters are still interrogated and sexually harassed daily in Sri Lanka. The Sri Lankan government continues to convince the foreign countries with exaggerated procedures that they would not arrest failed asylum seekers overseas. In reality they are arresting all those who returned back recently. The government’s intention is to wipe out the Sri Lankan Tamils who were supporters of the LTTE in the past so that no one would come forward to regroup the LTTE in the future.

(viii)    In my case the DIBP had made publicly available our personal information on their Immigration website through which the Sri Lankan CID officers had access to the Sri Lankan who escaped persecution through illegal boats to Australia. As I am one of them, the CID had arrested my relatives, raped my wife and had threated to abduct my other twin son if my son and I failed to surrender to them on our return. I made this application through a foreign lawyer who used an interpreter to understand me to lodge this statement and application. During the interview with the lawyer who helped me and also during the interview with the DIBP case officer both with the assistance of Tamil interpreters, I feared to mention information about me and my family as I feared that either the DIBP or the interpreters could pass those information to the Sri Lankan authorities. There is no other way for the CID officers to know how we fled from Sri Lanka. Now my life is at stake. I could be arrested and killed on my arrival in Sri Lanka. If my application is rejected, I would end up being tortured and killed by the CID. No one has the power to take these CID officers or the army officers or the murderers who are the Tamil armed groups to the Courts who are responsible for the murders that are happening behind closed doors. No foreign journalists or foreign humanitarian organization are given access to these innocent victims so that they could publicise these atrocities to the worlds. Already the Sri Lankan ex president Rajapakse is escaping from being tried for genocide and the present president Sirisena who was a minister under Rajapakse regime is protecting him. These are new information for you to consider. I feared to mention these during the interview as I could be departed by the Australian government, which had already departed Sri Lankan Tamil boat arrivals in the past, who have disappeared. I do not want to be one of them.

The Authority’s reasons

124    The Authority summarised the new information (at [8]-[9]) and concluded that BTA18 could have provided the information prior to the delegate’s decision (at [10]). It said:

I consider the information could have been provided prior to the delegate’s decision as the information relates to past events, all of which are said to have occurred prior to the decision. Further, I consider the claimed May 2016 visit information, which was just before the decision, could have been provided to the delegate. I consider that if the event had just occurred, it is even more likely that he could have informed immigration. Further, the applicant was legally represented and informed and aware of the need to provide information to immigration. The applicant raised concerns about visits to his home in his statements, therefore if further visits had occurred he was well aware of the importance and need to provide that information. I do not accept he was fearful of disclosing because the information could be provided to the authorities. The applicant had already disclosed visits to his home and that his cousin was LTTE. It does not make sense that he would disclose that and not information about further visits or more serious situations. Further, it does not make sense that he feared disclosure by Australia to Sri Lankan authorities, as it was the Sri Lankan authorities who were visiting the family. If the Sri Lankan authorities were visiting the family (as claimed), the Sri Lankan authorities know that.

125    The Authority continued (at [11] - [13]):

[11]    I accept the information is personal information. However, that the applicant only raised these claims leads me to doubt his genuineness of the claims. While some of the claims relate to events in 2016 (prior to the delegate’s decision), the claims also relate to and stem from claimed events in 2003 and 2008. But were not mentioned previously. I consider the applicant had plenty of opportunity to raise these claims in 2 statements, 2 interview and submissions. His LTTE involvement and visits to the family were discussed and mentioned in his interviews and statements, but he did not mention these LTTE claims about his brothers in law and their situations in 2003 and 2008. Further, although he claimed his brother in law complained to HRC about the applicant’s abduction in 2008, the applicant made no mention of his brother in law’s own arrest in 2008. Although the applicant mentioned he was questioned about his cousin’s LTTE involvement, the applicant made no mention of his brother in law’s arrest and being branded LTTE accomplice or any court case or that it was adjourned in 2013. If these events had occurred, I consider he would have mentioned these when the applicant mentioned his brother in law’s involvement in his own case or when he mentioned his cousin’s LTTE connections. Further, the applicant had mentioned other visits to the wife at home so he could have also mentioned the more recent visits. It is not credible that he would not mention recent and more serious visits to the home or that his wife’s and sister’s families were targeted or his wife was raped. It is not credible that he would not mention that three of his brothers in law had been arrested on grounds they were LTTE. Further, the applicant provided little details. For instance, it is not clear when he claims they were arrested (2008 or 2013 or 2016). Presumably it was after 2013, when the applicant left Sri Lanka as he claims CID were aware the applicants had left Sri Lanka. He provided no details of when his wife moved house or was harassed. Further, it is not credible that he would not have informed immigration of such significant changes in his claims, such as his wife being sexually assaulted or raped and having to move to relatives. It is not credible that the applicant would not have mentioned such a critical part of his claims, particularly given the number of opportunities he had to do so and he was legally represented. Further, it is not credible that he would not be aware or told of such arrests or harassment soon after they occurred as he is in contact with his wife and family frequently and it would have been important to case. The applicant was legally represented and informed on a number of occasions to provide all information about his claims. Despite previous discussion about LTTE involvement and visits by authorities in his statements and interview these crucial events were not mentioned. As discussed above, I do not accept his explanation that he feared disclosure by Australia to Sri Lankan authorities. The applicant’s late claims all relate to what the Sri Lankan authorities have done to the family, so his explanation of fear of that disclosure to Sri Lankan authorities does not make sense. Further, while I accept the applicants were subject to the data breach, the explanations and fear of disclosure is not consistent with applicant disclosure of claims. Further, it was explained the claims would be and were kept confidential. Given that the new claims are raised so late despite the previous opportunities I am not satisfied the new claims and explanations are credible. The applicants have not satisfied me as to the matters in s.473DD(b).

[12]    Further, I am not satisfied that there are any exceptional circumstances to justify considering information.

[13]    I have not considered the information.

The primary judge’s reasons

126    The primary judge said the following (at [67]-[71]):

[67]     The Second Authority decision shows that the Authority engaged with the new information in some detail. Contrary to the Applicants’ submission, it did not limit its consideration to the temporal aspect in its consideration of credibility of the new information. It is apparent from each of the references in [10] and [11], that the Authority considered each of the matters newly provided in their context, and having regard to the existing information already provided in support of the Visa application about matters (events and involving persons), which it considered were of a similar nature, and kind, or related to persons already mentioned, or were significant changes to his claims, or critical, including:

(i)    being further instances of concerning visits to his home and family (wife and son);

(ii)    the more serious situation involving his wife (the sexual assault)/ the significant changes to his claims such as his wife being sexually assaulted or raped and having to move to relatives;

(iii)    relatives who had LTTE involvement (that his cousin was LTTE had been disclosed, new information was LTTE claims about his three brothers in law, and their situations in 2003 and 2008/ that they were arrested on grounds they were LTTE); and

(iv)    further incidents to relatives who had previously been mentioned, occurring in the same time period (his brother in law’s complaint about the First Applicant’s abduction in 2008 and involvement in the First Applicant’s case was previously mentioned, but not the new information of his brother in law’s own arrest in that year).

[68]    The Authority took into consideration that the First Applicant provided little details. It was not clear when he claims the three brothers in law were arrested (2008 or 2013 or 2016, although the Authority assumed to be after 2012), and he provided no details of when his wife moved house or was harassed. In relation to the information relating to his wife, the Authority considered the nature of the information (about a sexual assault / rape) as being something that if it had just occurred (that is, in May 2016, shortly before the First Applicant learnt of it), made it “even more likely” he could have informed the Department. It took into consideration that the First Applicant was legally represented and informed on a number of occasions to provide all information about his claims.

[69]    The Authority found the First Applicant’s explanation, of fear of disclosure to Sri Lankan authorities, was not consistent with his previous disclosure of reprisals from the Sri Lankan authorities. The Authority found that his explanation did not make sense as the Sri Lankan authorities carried out the conduct, thus they would already be aware. It also noted that it had been explained that the claims would be and were kept confidential.

[70]     Fairly read, the Authority’s findings of credibility were informed by its consideration of the First Applicant’s failure to mention information that was closely related to events and people he had previously mentioned, and information that was more ‘serious’ in connection with matters he had already raised. It was in this context that the First Applicant’s failure to provide information earlier informed the Authority of its findings of credibility. The Authority considered the First Applicant’s failure to provide ‘critical’ information of claimed matters that occurred prior to the Delegate’s decision, as a represented applicant, and given the number of opportunities he had to do so.

[71]    I find that the Authority found that the information provided by the First Applicant was not credible personal information, and it found that the explanation he proffered for the late provision of the information not credible. In so finding it did not limit its consideration to the “temporal aspects”.

The appellants’ submissions summarised

127    The appellants submit that in deciding (at [11]) that the new information provided by BTA18 was not “credible” the Authority misconceived its statutory task under s 473DD(b)(ii) and thereby fell into jurisdictional error. They argued that the Authority erred in two main ways.

128    First, by applying the wrong threshold for determining whether the new information was “credible” under s 473DD(b)(ii). This argument is based in the decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] (Bromberg J), approved in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 29 FCR 150 at [62]-[78] (Mortimer and Jackson JJ). Bromberg J held that the Authority’s task in deciding whether new “personal information” is “credible” under s 473DD(b)(ii) involves the application of a “filtering mechanism” to the new information. At that stage, the Authority’s task is not to decide whether the new information is “genuine” or “true” but only to decide whether it is “capable of being believed”, as part of a preliminary decision about the scope of the material it will be considering in the review. The appellants contend that the Authority erred by including that it did not believe the new information, rather than deciding whether the new information was “capable of being believed”, and it thereby misconceived its statutory task and fell into jurisdictional error.

129    Second, by treating the failure to disclose the new information prior to the delegate’s decision as determinative of its credibility under s 473DD(b)(ii). The appellants submit that in deciding (at [11]) that the new information was not “credible” the Authority fixated upon BTA18’s failure to disclose the new information earlier. They contend that whether the new information could have been provided to the Minister before the delegate’s decision was properly the focus of s 473DD(b)(i), and by treating the lateness of the new information as determinative of its “credibility” s 473DD(b)(ii) was deprived of any utility. They allege that the Authority misconceived its statutory task under s 473DD(b)(ii) and thereby fell into jurisdictional error.

The Minister’s submissions summarised

130    In relation to the appellants’ first argument, the Minister accepts that s 473DD(b)(ii) required the Authority to make a preliminary assessment as to whether the new information was “capable of being believed” rather than a final decision as to whether the Authority believed the information. The Minister however contends that, on a fair reading of the Authority’s reasons, it did not impermissibly assess the credibility of the new information based upon whether those claims were ultimately truthful instead of deciding whether it was “capable of being believed”.

131    Further, on the Minister’s argument it was permissible for the Authority to consider BTA18’s late disclosure of the new information as a matter informing its assessment as to whether the information was “credible”. And the Minister contends that the Authority did not limit its consideration of the “credibility” of the new information just to its late disclosure.

132    In the alternative, the Minister argues that if there was some error in the Authority’s approach to its statutory task under s 473DD(b)(ii), the error did not rise to the level of jurisdictional error.

Consideration

133    I consider that the Authority fell into error in its approach to deciding under s 473DD(b)(ii) whether the new information provided by BTA18 was credible personal information.

134    First, I accept the Minister’s contention that it was permissible for the Authority to consider late disclosure of the new information as one factor in assessing whether the information was “credible” within the meaning of s 473DD(b)(ii). But on a fair reading of its reasons (at [11]) the Authority fixated on BTA18’s failure to make the new claims at an earlier stage, and in taking that approach it misconceived its task.

135    The Authority said (at [11]) that BTA18 had “plenty of opportunity” to raise the new claims in his earlier two statements, two interviews and submissions, and it concluded that lengthy paragraph by stating that “[g]iven that the new claims are raised so late despite the previous opportunities I am not satisfied the new claims and explanations are credible”.

136    The Authority identified a number of matters relevant to the credibility of the new information, five of which are as follows:

(a)    “it is not credible that he would not mention recent and more serious visits to the home or that his wife’s and sister’s families were targeted or his wife was raped”;

(b)    “[i]t is not credible that he would not mention that three of his brothers in law had been arrested on grounds they were LTTE”;

(c)    “it is not credible that he would not have informed immigration of such significant changes in his claims, such as his wife being sexually assaulted or raped and having to move to relatives”;

(d)    “[i]t is not credible that the applicant would not have mentioned such a critical part of his claims, particularly given the number of opportunities he had to do so and he was legally represented”; and

(e)    “it is not credible that he would not be aware or told of such arrests or harassment soon after they occurred as he is in contact with his wife and family frequently and it would have been important to [the] case”.

The first four of those matters related to BTA18’s failure to disclose the new information before the delegate made the decision to refuse to grant him a visa, and the last related to his explanation for the delay in disclosure.

137    The Authority also relied on an (asserted) lack of detail in BTA18’s claims in finding that it was not credible. The Authority noted that BTA18 did not say when his brothers in law were arrested and provided no details of when his wife moved house and was harassed. And it can be said, as the primary judge found (at [71]), that “the Authority’s findings of credibility were informed by its consideration of … [BTA18’s] failure to mention information that was closely related to events and people he had previously mentioned, and information that was more ‘serious’ in connection with matters he had already raised.”

138    But on a fair reading, the Authority’s finding that BTA18’s claims lacked detail was not central to its conclusion. That remark has the appearance of a throwaway line, and on a fair reading it was not a significant to the conclusion as the inconsistencies the Authority found. Nor is there much in the examples of a lack of detail to which the Authority pointed. Although the new information did not state when BTA18’s brothers in law were arrested, it can only have been after September 2013 when he left Sri Lanka. And although BTA18 did not say when his wife moved house, he did say that his wife was raped in May 2016 and her moving house can only have been after that.

139    In taking the approach to s 473DD that it did the Authority misunderstood the interaction of s 473DD(b)(ii) with s 473DD(b)(i). Subsections 473DD(b)(i) and (ii) provide two alternative gateways through which the Authority may become obliged to consider new information provided by a referred applicant (provided the “exceptional circumstances” requirement in s 473DD(a) is also met).

140    Section 473DD(b)(i) is the first gateway. Under this subsection the Authority is obliged to consider new information which “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. It is expressly concerned with new information that could have been provided earlier, and it operates to exclude new information that BTA18 could have provided before the delegate decided not to grant him a visa.

141    Section 473DD(b)(ii) is an alternative and wider gateway. Under this subsection the Authority is obliged to consider new information which is:

(a)    credible personal information;

(b)    which although it may have been previously known to the referred applicant, was not previously known to the Minister (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [33]); and

(c)    had it been known to the Minister, may have affected the consideration of the referred applicant’s claims.

142    It contemplates that the new information can predate the delegate’s decision, and the receipt of such information by the Authority is not precluded even by the fact that the referred applicant knew of the information at an earlier stage. As Mortimer J (as her Honour then was) put it in ALJ18 v Minister for Home Affairs [2020] FCA 491 at [37]:

…the premise of s 473DD is that there is further “new” information that has not been disclosed to the delegate. The mere fact of non-disclosure is therefore not a sufficient basis for the rejection of new information, otherwise the purpose of the exception for which s 473DD provides would be frustrated.

143    The plurality in AUS17 at [9] (Kiefel CJ, Gageler, Keane and Gordon JJ) explained that s 473DD(b)(ii) was inserted “for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i).” It modifies the policy evident in ss 5AAA, 473DB and 473DD(b)(i) which casts responsibility on the referred applicant to have provided evidence to establish his or her claim at the time of making the visa application. In that sense s 473DD(b)(ii) provides for “a very limited second opportunity” for a referred applicant to provide evidence that might previously have been provided.

144    In the present case the Authority treated BTA18’s failure to disclose the new claims to the delegate - which is the focus of s 473DD(b)(i) - as decisive in relation to its consideration under s 473DD(b)(ii). In its assessment of the credibility of the new information under s 473DD(b)(ii) it repeatedly circled back to the late provision of the new information, rather than undertaking a broader evaluation of its credibility. There is nothing to show that the Authority gave consideration to the substance of the new information so as to decide whether it was “capable of being believed”; rather, it decided the new information was not credible because “the new claims are raised so late despite the previous opportunities.” Nor did the Authority say anything to indicate that it had made any assessment of whether the new information was “obviously incredible or inherently incapable of belief”: see BOS17 v Minister for Immigration and Border Protection [2020] FCA 75; 170 ALD 1 at [43] (O’Bryan J). Instead, on a fair reading, the Authority focused almost entirely on the lateness of its provision.

145    The Authority thereby misunderstood its statutory task under s 473DD(b)(ii), and the primary judge erred in failing to so find.

146    Second, although I do not consider this error to be as clear as the error just discussed, I am persuaded that the Authority applied the wrong threshold for determining whether the new information was “credible” under s 473DD(b)(ii).

147    In CSR16 at [42], Bromberg J explained that the term credible is used in s 473DD(b)(ii) as “a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not.” His Honour said (at [41]-[42]):

In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

…[i]n that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

148    His Honour’s decision was cited with apparent approval by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [17] (Flick, Griffiths and Perry JJ). Then, in BOS17 at [43] O’Bryan J took the same approach. His Honour noted that “[t]he word “credible” does not impose a requirement that the information be believed by the Authority or that it be judged by the Authority to be more likely than not true”, and characterised “credible” as a filter to exclude only information that “was obviously incredible or inherently incapable of belief”.

149    CSR16 and BOS17 were cited with approval in ALJ18 at [29], and [36] (Mortimer J, as her Honour then was). Then, in BTW17 the Full Court endorsed that reasoning (at [62]-[78]). Their Honours said (at [68]) that s 473DD(b)(ii) is a “filtering mechanism” that is part of “its preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task”. They went on to say the following (at [74]-[77]):

[74]    As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.

[75]    That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.

[76]    Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.

[77]    Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii)...

150    The Minister does not dispute the correctness of the approach in BTW17; rather, the Minister argues that on a fair reading of the Authority’s reasons, the Authority did not impermissibly assess the credibility of the new information based on whether those claims were ultimately truthful, instead of deciding whether they were “capable of being believed”.

151    I take a different view. The Authority said (at [11]) that it doubted the “genuineness” of BTA18’s new claims. It then went on to identify five matters supporting its conclusion that the new claims were “not credible” (extracted at [137] above), and it expressed its views in that regard by using language such as “I do not accept” and “it does not make sense”. The Authority used the same language in assessing the credibility of the new information at this preliminary stage as it used in making credibility findings regarding BTA18’s claims in deciding the substantive application.

152    In the context of s 473DD(b)(ii) the Authority was only required to decide whether the new claims were “capable of being believed”; that is, whether they were “obviously incredible or inherently incapable of belief.” On a fair reading, at what should have been the preliminary stage of deciding the scope of the information it would considered, the Authority instead seems to have assessed the credibility of the new information by deciding whether the new claims were ultimately truthful.

153    The Authority thereby misconstrued s 473DD(b)(ii) and misunderstood its statutory task, and the primary judge erred in failing to so find.

Materiality

154    For essentially the same reasons as in relation to Ground 2 of BTA18’s appeal and Ground 6 of BTB18’s appeal, I am satisfied that the Authority’s error is material, and thus jurisdictional. First, as I said earlier, the assessment of credibility is not necessarily linear and I cannot be confident that the error I have found in the Authority’s approach to deciding that BTA18’s new claims were not “credible” and thus could not be considered, did not infect its reasoning in concluding that it did not believe BTA18’s claims in relation to the substantive visa application. There is a realistic possibility, based on the “undemanding” standard of “reasonable conjecture” (Nathanson) that had the Authority not erred as it did, the Authority might have reached a different outcome in the application. Second, had the Authority not erred in its approach to deciding that the new information was not “credible” and thus could not be considered, BTA18’s new claims would have been before the Authority in the substantive application. There is a realistic possibility, based on the standard of reasonable conjecture, that the Authority might have reached a different conclusion had those claims been before it. The Authority’s errors were therefore “material” in the sense discussed in SZMTA, Hossain and Nathanson.

GROUNDS 1A AND 4 OF BTB18’S APPEAL

The grounds

155    I commence by noting that little turns on these grounds as BTB18’s appeal succeeds on Grounds 5 and 6. But in circumstances where these grounds were fully argued it is appropriate that I express my views on them.

The grounds

156    Grounds 1A and 4 of BTB18’s appeal allege as follows:

The primary judge erred in finding that there is no claim by the Appellant raised clearly or squarely on the material before the Second Respondent

Further, and in the alternative, the primary judge erred in failing to find that Second Respondent made a jurisdictional error in the manner in which it determined its obligations under section 473CC of the Migration Act by failing to separately consider the Second Applicant from the First Applicant.

The statutory framework

157    Both BTA18 and BTB18 applied for a Safe Haven Enterprise visa, a form of protection visa (s 35A). The criteria for the grant of such a protection visa is set out in s 36 of the Act.

158    Section 36(2)(a) provides that a person can qualify for a protection visa if the person is a refugee (as defined in s 5H); or by s 36(2)(aa), a person can qualify for a protection visa if the person meets the complementary protection criterion. As I will explain, in my view BTA18 sought a protection visa via this route.

159    Section 36(2)(b) and (c) provide that another criterion for a protection visa is that a person is:

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

That is, a person may qualify for a protection visa if the person is a member of the same family unit as a person who qualifies for a protection visa under s 36(2)(a) or (aa). As I will explain, in my view BTB18 sought a protection visa via this route.

160    It is customary to refer to applicants who apply via s 36(2)(a) or (aa) as “primary applicants” and those who apply pursuant to s 36(2)(b) or (c) as “secondary applicants”: see BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171; 272 FCR 15 at [4] (Middleton, Bromberg and Snaden JJ); CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [43] (Mortimer, Derrington and Steward JJ (as Mortimer J then was)).

161    The appellants both entered Australia by boat, without a visa, and they were each an “unauthorised maritime arrival” under s 5AA of the Act. They entered Australia on or after 13 August 2012 and before 1 January 2014 and made a valid application for a protection visa and accordingly they were each a “fast track applicant” under s 5. The delegate’s decision to refuse to grant them a protection visa was a “fast track decision” and a “fast track reviewable decision” and they were each a “fast track review applicant” under the definitions of those terms in s 5 and s 473BB.

162    Under s 473CA the Minister was required to refer the fast track reviewable decisions in relation to both applicants to the Authority as soon as reasonably practicable. Under s 473CC the Authority was required to review each of those fast track reviewable decisions, and to either affirm that decision or to remit the decision for reconsideration.

163    The Authority therefore had two review applications before it: see BJK17 at [53] and [57]. It is of no consequence that the Minister (via his delegate) considered and ruled upon the two visa applications by means of a single decision record: Basra v Minister for Immigration and Border Protection [2018] FCA 422 at [36] (Moshinsky J).

The Authority’s reasons

164    As I said, on 21 August 2015 BTA18 lodged an application for a protection visa for himself, and for BTB18 as a member of the same family unit. The Form B lodged by BTA18 expressly stated that he was raising his own protection claim, and that BTB18 was not. The Form C lodged in relation to BTA18’s application also expressly stated that he was making his own protection claims and included a detailed statement setting out the basis of his claims. The Form C lodged in relation to BTB18’s application expressly stated that he was not making his own protection claim. It did not include a statement detailing the basis of any protection claim by him. BTB18 signed a declaration to the effect that the Form C was true and correct.

165    Having regard to the delegate’s reasons, the delegate understood that BTA18 claimed that he would face a real chance of suffering serious harm on return to Sri Lanka and Australia therefore owed him protection obligations. The delegate also understood that BTB18 sought a protection visa on the basis that he was a member of the same family unit as BTA18. The delegate decided not to grant a protection visa to either of the appellants, but on different grounds. The delegate found that:

(a)    BTA18 was not a person in respect to whom Australia had protection obligations under s 36(2)(a) or (aa) of the Act and refused his application for a protection visa on that basis; and

(b)    it was also appropriate to refuse to grant a protection visa to BTB18 on the basis that since BTA18 was not granted a protection visa, BTB18 did not satisfy section 36(2)(b) or (c) of the Act.

166    Those were the decisions referred to the Authority for review.

167    The Authority recognised that it had been referred two applications to decide. But its reasons are at times puzzling, and at other times plainly wrong, when one has regard to the differing basis of the two referred applications.

168    For example, the Authority said (at [4]):

In essence, the applicants’ claims relate to fear of harm from the Sri Lankan authorities because of their perceived LTTE profile, failed asylum seekers, data breach and for their illegal departure and immigration data breach.

That statement was clearly wrong. There was nothing in the evidence before the Authority to indicate that BTB18 claimed to fear harm from the Sri Lankan authorities because he had a perceived LTTE profile, was a failed asylum seeker who had departed illegally, or that he had been the victim of an immigration data breach. He had left Sri Lanka when he was only 13 years old, and there is nothing in the evidence to suggest that he had any involvement with the LTTE before he left. In neither his 2013 or 2015 statement did BTA18 say that BTB18 would be perceived as having a LTTE profile because BTA18 would be perceived as having that profile.

169    The Authority continued (at [4]) as follows:

…[BTA 18] also feared for his son’s future as Tamils are discriminated against and there is no support and the Government treats Tamils badly.

That statement was (correctly) drawn from BTA18’s 2013 statement.

170    Then, the Authority said (at [19]):

…[BTB18] has not made separate claims and relies on his father’s claims as a member of the family unit and claims made on his behalf.

(Emphasis added.)

The highlighted words can only have been a reference to BTA18’s claim that he feared for his son’s future “as Tamils are discriminated against, there is no support for them and the Government treats Tamils badly.” I say that because they were the only claims made on BTA18’s behalf.

171    The Authority also said (at [55]) that it had “considered …[BTA18’s] claims to fear harm on the basis of being suspected LTTE and the son’s claims on that basis” (emphasis added). Again, that was plainly incorrect. BTB18 made no such claim and no such claim was made on his behalf.

172    Then, notwithstanding that there was nothing in the evidence before it to indicate that BTB18 made a claim to fear harm from the Sri Lankan authorities because he had a perceived LTTE profile, was a failed asylum seeker who had departed illegally, or that he had been the victim of an immigration data breach, the Authority made a series of factual findings in relation to those (imagined) claims, and rejected them. Amongst other findings, the Authority did not accept that:

(a)    the appellants (which necessarily includes BTB18) were suspected LTTE or of adverse interest to the Sri Lankan authorities and did not accept that BTA18 or BTB18 had an LTTE profile (at [59]);

(b)    the appellants (again, necessarily including BTB18) face any chance of being detained or coming to the Sri Lankan authorities’ attention as it did not accept that they have an LTTE, anti-government profile or links or an imputed political opinion as a supporter with LTTE links (at [61]);

(c)    the appellants fit the profiles of persons with an LTTE association who have been monitored, arrested, detained or prosecuted in the past (at [64]);

(d)    the fact that the appellants will return to Sri Lanka as a failed asylum seekers who were the subject of an immigration data breach meant that there was a real chance that they would be harmed by the Sri Lankan authorities (at [72]); and

(e)    the fact that the appellants illegally departed Sri Lanka without a passport meant that they faced a real chance of serious harm now or in the reasonably foreseeable future (at [82]).

173    The Authority also made factual findings in relation to other purported claims by the appellants (necessarily including BTB18), including that it did not accept that:

(a)    the appellants face a real chance of any discrimination or harm given the significant improvements in the security and humanitarian situation in Sri Lanka since the end of the war (at [62]);

(b)    the appellants’ ability to find employment and accommodation upon return to Sri Lanka, or that their capacity to subsist would in any way be threatened. It noted that the war has finished, BTB18 is no longer a schoolboy and has completed high school, and BTA18 still has a home and paddy fields in Sri Lanka (at [63]);

(c)    the appellants face a real chance of harassment or monitoring or discrimination or harm by Sri Lankan authorities. It accepted country information to the effect that the monitoring and arrestment of Tamils in day-to-day life has decreased significantly and that the appellants do not face a real chance of suffering harm on account of their Tamil ethnicity (at [65]-[66]);

(d)    the fears BTA18 held for his son as a Tamil (at [67]); and

(e)    BTB18 faces a real chance of harm because of his age, Tamil race or ethnicity, or membership of a particular social group as a single young Tamil Hindu male from Trincomalee, who lived in an LTTE controlled area, whose father was detained in 1992 or who was harassed in question during the war, or because of his father’s circumstances or LTTE relatives, or was subject of the data breach, or that he will return to Sri Lanka as a returnee from a Western country on a temporary passport or who sought asylum (at [69]).

174    Then, curiously, having made a series of factual findings in relation to both appellants in which it did not accept any basis for them to have a well-founded fear of suffering serious harm in Sri Lanka, the Authority only expressed a conclusion in relation to BTA18’s refugee status. It said (at [85]) that “[t]he applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a)”. It did not express that conclusion in relation to BTB18.

175    The Authority followed the same puzzling course in deciding whether the appellants were entitled to complementary protection. It made various factual findings to the effect that it did not accept that either of them would face a real risk of significant harm in Sri Lanka (at [88]-[93]). But it only expressed the conclusion that BTA18 did not meet the requirements of s 36(2)(aa) and was not entitled to complementary protection (at [95]). Again, it did not express that conclusion in relation to BTB18.

176    The Authority then turned to consider BTB18’s application for a protection visa on the basis that he was a member of the same family unit as BTA18. It (wrongly) did so on the basis that BTA18 had also made a secondary application for protection, but there was no error in its approach to BTB18’s claim. It said (at [96]-[97]):

[96]    Under s.36(2)(b)(i) or s.36(2)(c)(i) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. A person is a 'member of the same family unit' as another if either is a member of the family unit of the other or each is a member of the family unit of a third person: s.5(1). For the purpose of s.5(1), the expression 'member of the family unit' is defined in r.1.12 of the Migration Regulations 1994 to include a spouse of the family head.

[97]    As the [sic] neither applicant meets the definition of refugee or the complementary protection criterion, it follows that the other applicant does not meet the family unit criteria in either s.36(2)(b)(i) or s.36(2)(c)(i).

The primary judge’s reasons

177    The primary judge did not accept BTB18’s argument that the Authority fell into jurisdictional error by failing to separately consider his personal protection claims, as opposed to considering his claims for protection as a part of the same family unit as his father.

178    The primary judge said in relation to BTB18’s ground one below (at [74]-[78]):

[74]     As to the Second Applicant’s further submissions, there was the one fast track decision referred to the Authority for review, being the Delegate’s decision. There was one substantive application the subject of the Delegate’s decision, the Visa application made by the First Applicant in which the Second Applicant was identified as a member of the same family unit as the First Applicant, not raising his own claims for protection. Each of the Applicants indicated that the Second Applicant did not raise his own claims for protection in the Visa application (Form 790B Part B, item 3, and Second Applicant’s Part C, question 88). The obligation of the Authority is to review that one decision. The statutory language is clear.

[75]     The Second Applicant did not make any claims of his own and relied on the claims of the First Applicant. In the circumstances of this case, there is no claim raised clearly or squarely on the material before the Authority by the Second Applicant.

[76]     Whilst an unarticulated claim might clearly emerge before a decision‑maker (as the Full Court has explained in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (at [18] – [31]), including from a decision-maker’s findings and the material before them, this is not such a case. No such claim of the Second Applicant clearly emerges from the findings of the Authority in the Second Authority decision.

[77]     I find that the Authority was under no obligation to consider the Second Applicant’s circumstances separately to that of the First Applicant. The Authority’s consideration of the new information was correctly assessed against the claims put forward, that is, the First Applicant’s claims. I do not accept the Second Applicant’s submission.

[78]     I find that the Authority did not err by considering the new information against the claims of the First Applicant.

179    In relation to BTB18’s grounds three and four below, her Honour said (at [106]):

As I have identified at [74]‑[77] above, the Second Applicant made no claims of his own. Contrary to the Second Applicant’s submissions, no claim of the Second Applicant clearly emerged from the materials before the Authority or can be discerned in its findings. As I have discussed above in relation to ground 1, the Authority engaged with the material before it and conducted a sufficient evaluative process directed at the evidence before it and the issues raising from that material.

180    In relation to BTB18’s ground six below, her Honour said (at [111]):

The Authority considered the Second Applicant’s situation directly at [69] of the Second Authority decision. The Authority was not under any obligation to do more in the circumstances: where the Second Applicant identified as a member of the same family unit as the First Applicant, and did not claim to raise his own claims for protection.

BTB18’s submissions summarised

181    BTB18 argues that to perform its statutory task the Authority was obliged to consider his claim separately from that of his father. He relies on the fact that the Authority:

(a)    accepted (at [4]) that BTA18 claimed that he “also fears for his son’s future as Tamils are discriminated against and there is no support and the Government treats Tamils badly”; and

(b)    said (at [19]) that BTB18 relies on “claims made on his behalf”.

182    BTB18 contends the Authority’s statement (at [4]) should be regarded as an acknowledgement that it understood the claims being made on behalf of BTB18, and that the statement (at [19]) shows that the Authority appreciated that BTB18 was the subject of protection claims made on his behalf. He relies on the principles in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ), to argue that personal claims by BTB18 for protection were “squarely raised” or “clearly emerged” from the materials before the Authority and it was obliged to consider those claims.

183    BTB18 submits that notwithstanding its acknowledgement of the protection claims made on his behalf, the Authority gave no consideration to those claims, yet went on to state (at [97]) that “neither applicant meets the definition of refugee or the complementary protection criterion”. He says that Authority’s failure to consider a claim which has been squarely raised or clearly emerged from the materials, constitutes jurisdictional error, and the primary judge erred in failing to so find.

Consideration

184    In my view the primary judge erred in holding (at [74]) that there was only one fast track decision referred to the Authority for review. That conclusion is contrary to BJK17 at [53] and [57]. And I respectfully disagree with the primary judge’s conclusion (at [75]) that no personal claim for protection in respect to BTB18 was squarely raised or clearly emerged in the materials before the Authority.

185    Even so, I can see little merit in these grounds of appeal.

186    The thrust of BTB18’s argument is that the Authority erred by not separately considering the protection claims made on his behalf, as opposed to it considering his derivative claim as a member of the same family unit as his father, and that the primary judge erred in failing to so find (at [77]).

187    Having regard to the fact that:

(a)    the Part B (Form 790B) lodged by BTA18 set out his son’s details as a person included in the application as a member of the same family unit, and stated that BTB18 did not raise his own claims for protection;

(b)    the Part C (Form 790C) lodged on BTB18’s behalf expressly stated that he did not make his own claims for protection, and did not include a statement setting out a basis for any such claim,

I consider BTB18’s visa application was (at least in part) derivative of his father’s application and he did not expressly make a claim for protection himself.

188    The key statutory criterion he sought to meet was that he is a member of the BTA18’s family, who would qualify for a protection visa once his father was granted a protection visa (and once he could establish that he did not pose a risk of the kind to which ss 36(1B) and 36(1C) of the Act refer).

189    BTB18 could, however, also raise his own protection claims so that he would also be a primary applicant, or a primary and a secondary applicant at the same time, as the Minister accepted.

190    At the time his visa application was lodged BTB18 was a minor, and it was open to his father to raise protection claims on his behalf. In essence BTB18 asserts that his father advanced protection claims on his behalf which, although not expressly made, were “squarely raised” or “clearly emerged” from the materials before the Authority, and the Authority was obliged to consider his claims separately from those of his father.

191    The high point of his argument in that regard is that BTA18 said in his 2013 statement that he “also fears for his son’s future as Tamils are discriminated against and there is no support and the Government treats Tamils badly”. The Authority recognised that claim (at [19]) when it said that “[BTB18] has not made separate claims and relies on his father’s claims as member [sic] of the family unit and claims made on his behalf” (emphasis added).

192    In AYY17 at [18] the Full Court usefully collected the relevant principles in relation to whether a claim which is not expressly articulated is required to be dealt with. Their Honours said:

It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

193    BTB18 did not particularise the claims which he contends was “squarely raised” or "clearly emerged" from the material before the Authority, beyond referring to the fact that his father claimed to fear for his future as Tamils are discriminated against; they receive no support; and the Sri Lankan government treats Tamils badly. The Authority’s reasons (at [4] and [19]) show that it understood that claim, and I am satisfied that claim clearly emerged from the materials before the Authority.

194    But there is nothing in the materials before the Authority to indicate that his father made any other claims for protection on BTB18’s behalf, or that BTB18 himself made a personal claim for protection. In my view the only personal claim for protection in respect to BTB18 which clearly emerged from the materials before the Authority, and which it was therefore obliged to consider, was the claim to which I have referred.

195    And BTB18’s contention that the Authority failed to consider that claim (or even other broader unexpressed claims) has no merit, as the primary judge recognised at [111]. Amongst other things, the Authority considered but did not accept that:

(a)    the fears BTA18 held for his son as a Tamil were well-founded (at [67]);

(b)    BTB18 would face a real chance of any discrimination or harm given the significant improvements in the security and humanitarian situation in Sri Lanka since the end of the war (at [62]);

(c)    BTB18’s ability to find employment and accommodation upon return to Sri Lanka, or to subsist would in any way be threatened, in circumstances where the war has finished, he is no longer a schoolboy and has completed high school, and his father still has a home and paddy fields in Sri Lanka (at [63]); and

(d)    BTB18 would face a real chance of harassment or monitoring or discrimination or harm by Sri Lankan authorities. It accepted country information to the effect that the monitoring and arrestment of Tamils in day-to-day life has decreased significantly and that the appellants do not face a real chance of suffering harm on account of their Tamil ethnicity (at [65]-[66]).

196    The Authority concluded (at [69]):

…having considered [BTB18’s] circumstances and the country information I do not accept that he faces a real chance because of his age, Tamil race or ethnicity, or membership of a particular social group as a single young Tamil Hindu male from Trincomalee, who lived in an LTTE controlled area, whose father was detained in 1992 or who was harassed in question during the war, or because of his father’s circumstances or LTTE relative or was subject of the data breach, or that he will return to Sri Lanka as a returnee from a Western country on a temporary passport or who sought asylum…

197    In my view the Authority considered the only personal (as distinct from derivative) claim for protection made in respect to BTB18 and it did not accept it. Then, perhaps in an attempt to cover all the bases, the Authority considered and rejected a series of broader claims which BTB18 did not, in fact, make. These grounds of appeal fail.

GROUNDS 1, 2 AND 3 OF BTB18’S APPEAL

198    Again, little turns on these grounds as BTB18’s appeal succeeds on Grounds 5 and 6. But as I have said, it is appropriate that I express my views on them.

The grounds

199    Grounds 1,2 and 3 of BTB18’s appeal allege as follows:

The primary judge erred in failing to find that the Second Respondent failed to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) of the of the Migration Act 1958 (Cth) (Migration Act).

Further, and in the alternative, the primary judge erred in failing to find that the Second Respondent made an error of law in that it misconstrued the concept of ‘credible personal information’ under section 473DD(b)(ii) of the Migration Act.

Further, and in the alternative, the primary judge erred in failing to find that the Second Respondent made an error of law in that it misconstrued the concept of information that “could not have been” provided to the Minister before the Minister made the decision under section 65 for the purposes of s 473DD(b)(i).

The statutory framework

200    These grounds are concerned with the proper construction and operation of s 473DD of the Act. I set out that provision and some relevant principles at [120]-[121], [129] and [141]-[144] above, and I will not do so again.

The Minister’s submissions summarised

201    The Minister contended that the gravamen of BTB18’s argument in relation to Grounds 1, 1A, 2, 3 and 4 was that the Authority erred by not separately considering the protection claims made on his behalf, as opposed to considering his claims as derivative of those made by his father. The Minister said that all five of those grounds could be determined together, and could be dismissed for the reasons I accepted in relation to Grounds 1A and 4.

Consideration

202    In my view Grounds 1, 2 and 3 involve different considerations to Grounds 1A and 4. The former grounds require consideration as to whether the Authority misconceived its statutory task under s 473DD in deciding whether to consider the new information. The Authority decided (at [11]) not to consider the new information because although it was “personal information” it was not credible.

203    The Authority was required to undertake two reviews: BJK17 at [53] and [57]. And it purported to undertake two reviews, one for each of the appellants.

204    In my view BTA18’s application for a protection visa had two limbs:

(a)    a “secondary” claim under s 36(2)(b) and (c) of the Act, derivative of his father’s visa application; and

(b)    a “primary” claim under s 36(2)(a) and (aa) put forward on his behalf by his father, that on return to Sri Lanka he would be discriminated against as a Tamil, would not be supported and would be treated badly by the Sri Lankan government.

205    In relation to the primary claim I accept BTB18’s contention that in reaching its decision under s 473DD that it would not consider the new information the Authority did not consider his circumstances. The Authority had a duty to perform its task under s 473DD in relation to each of the referred applications before it, and it was obliged to consider BTB18’s position as well as BTA18’s. The Authority gave no consideration whatsoever (at [11]) to how s 473DD might apply to BTB18’s primary claim, and in taking that approach it fell into error. Then the primary judge erred in failing to so find, which error essentially flowed from her Honour’s erroneous conclusion that there was only one claim before the Authority.

206    I consider the Authority’s error to be material. Had the Authority considered BTB18’s position (as distinct from that of his father) when considering whether to receive the new information under s 473DD, there is a realistic possibility that it would have found that:

(a)    the new information about the rape of BTB18’s mother could not have been provided by him to the Minister before the delegate’s decision to refuse to grant him a visa because BTA18 had concealed it from BTB18. If that was accepted by the Authority s 473DD(b)(i) would be satisfied;

(b)    the new information about the rape was not previously known by BTB18 and was credible personal information, and had it been known at the time of the delegate’s decision in relation to BTB18 it may have affected the consideration of his claims. If that was accepted by the Authority s 473DD(b)(ii) would be satisfied; and

(c)    those circumstances, together with the BTB18’s age and the fact that his initial visa application was made by BTA18 without reference to BTB18’s personal claim for protection, might as a matter of reasonable conjecture have been accepted by the Authority as capable of constituting “exceptional circumstances” within the meaning of s 473DD(a).

207    Had the Authority considered the new information there is a realistic possibility, as a matter of reasonable conjecture, that the decision by the Authority could have been different had it not made the error. Grounds 1, 2 and 3 of BTB18’s appeal are allowed.

CONCLUSION

208        I have made orders to allow both appeals, and to set aside Orders 2 to 5 of the FCC made 18 September 2020. In lieu thereof the Court orders that:

(a)    the decisions of the Authority in relation to BTA18 and BTB18 dated 16 March 2018 be quashed;

(b)    the review applications in relation to BTA18 and BTB18 be remitted to the Authority, differently constituted, to be re-determined according to law; and

(c)    the First Respondent pay BTA18’s and BTB18’s costs of and incidental to the application for judicial review before the FCC and of the appeals, to be taxed by a Registrar in default of agreement.

Associate:

Dated:    25 October 2023