Federal Court of Australia

CXF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1278

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent's name be amended to the 'Minister for Immigration, Citizenship and Multicultural Affairs'.

2.    The oral application to amend the grounds of appeal is dismissed.

3.    Appeal dismissed.

4.    The appellant is to pay the first respondent's costs to be fixed by a registrar of this Court if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The appellant is a citizen of Sri Lanka and of Tamil ethnicity. He came to Australia by boat in 2012, when he was about 16 years old. In 2016 the appellant was refused a safe haven enterprise protection visa by a delegate of the Minister. The visa refusal decision was the subject of automatic review by the Immigration Assessment Authority under Part 7AA of the Migration Act 1958 (Cth). The Authority affirmed the decision of the delegate. An application for judicial review to the (then) Federal Circuit Court of Australia (FCCA) was unsuccessful. The appellant appeals to this Court from the orders of the FCCA.

2    The appellant was unrepresented before the FCCA and before this Court, although he informed me that he had received assistance from a lawyer in drafting the written submissions upon which he relied in this Court.

Grounds of appeal

3    The notice of appeal sets out two grounds, both expressed in very general terms. They are to the effect that first, the primary judge erred in law and in fact, and second, the primary judge erred in finding that the Authority's decision was not vitiated by error.

4    The Minister fairly submitted that the appellant's contentions as to alleged error on the part of the Authority, having regard to matters he raised before the primary judge, might be summarised as an allegation of jurisdictional error flowing from: failure to accept claims regarding assaults that it should have accepted; reliance on only a 2015 Department of Foreign Affairs and Trade report (2015 DFAT report) about the situation for Tamils in Sri Lanka whilst failing to take into account other country information; failure to take into account the effect of the Prevention of Terrorism Act 1979 (PTA); failure to consider alleged links to the Liberation Tigers of Tamil Eelam (LTTE) in the context of harm; and failure to put inconsistencies to him or to undertake its own due diligence if it had concerns about his claims.

5    Further, the Minister submitted, if the appellant's submission were considered broadly, it might be said that he advanced a claim that the Authority acted unreasonably in failing to obtain new country information.

6    I will address each of these matters on the basis that the complaints about the Authority are to be taken as supporting an argument on the part of the appellant that the primary judge erred by failing to find that the Authority erred as alleged.

7    The appellant's written submissions in the appeal responded to the Minister's submissions. The appellant also sought to rely upon internet reports about the political situation in Sri Lanka dated 19 November 2019 and 21 January 2020 respectively.

8    During his oral submissions, the appellant sought to raise an additional ground, being an allegation that the manner in which the hearing proceeded before the primary judge (conducted by Microsoft Teams during the difficult COVID19 period of 2020) made it difficult for him to provide documents and that there were issues with the reliability and audio of the video connection.

9    I will approach this oral submission on the basis that the appellant seeks to amend his grounds to include the contention that the primary judge failed to accord to him procedural fairness in the conduct of the hearing.

The referral to the Authority under Part 7AA

10    The manner in which Part 7AA of the Migration Act operates has been the subject of considerable examination by the High Court: see, for example, the descriptions of its operation in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [1]-[2] (Kiefel CJ, Bell Gageler and Keane JJ), [60]-[61] (Nettle J), [79]-[81] (Gordon J), and [113] (Edelman J). Accordingly, is not necessary to address its operation in detail for the purpose of determining this appeal. However, some aspects are of relevance to the appeal grounds as formulated above.

11    The Authority generally does not hold hearings and is required to conduct its limited review of decisions on the basis of the papers, being the documents that are provided to it by the Secretary under s 473CB. There are limitations on its powers to obtain and take into account any new information that was not before the delegate, and it can only do so in exceptional circumstances: s 473DC and s 473DD. The Authority may invite the applicant to provide new information but if none is received, it is not obliged to take any further action to get information from the applicant or to get the applicant's comments on the information: s 473DF.

12    In the present case, the delegate's visa refusal decision was referred to the Authority in the usual manner under s 473CA of the Migration Act. The Department wrote to the appellant on 24 November 2016 informing him that the delegate's decision was to be referred to the Authority and informing him that if he considered there were exceptional circumstances that would justify the Authority considering new information, he should provide such information directly to the Authority.

13    On 29 November 2016 the Authority wrote to the appellant, informing him that the delegate's decision had been referred to it for review, and reiterating that it could consider new information if there are exceptional circumstances. It requested any such information be provided within 21 days.

14    The appellant did not seek to provide new information to the Authority or otherwise respond to its letter.

15    The Authority proceeded to review the delegate's decision on the basis of the material provided by the Secretary. It did not seek to obtain or receive any new information. It determined on 26 May 2017 to affirm the delegate's decision under review.

The appellant's claims and the Authority's findings

First claim - appellant's relatives killed in 2006

16    As summarised by the Authority, the appellant claimed that in January 2006 a few men from the Sri Lankan Army (SLA) went to his paternal aunt's house and killed the family. They hung the family members from the ceiling to make it look as if they had all committed suicide. The appellant found his relatives the next morning when he went to drop off food. Later, LTTE fighters came to the crime scene. A magistrate also came to take statements and gather evidence. The appellant provided a statement to the magistrate. The appellant stated that he believes that the LTTE found the SLA officers responsible and killed them.

17    The Authority noted that although this claim was referred to in his entry interview, it had not been referred to in subsequent records of his claims or his visa interview. The Authority was prepared to give the appellant the benefit of the doubt in this regard. While the Authority accepted that some of the appellant's family members were killed in an apparently shocking crime, it was not satisfied that the appellant faced a real chance of harm at the time of its decision or in the foreseeable future as a result of being the first person to find the bodies of his deceased relatives, or because he made a report to the magistrate. In coming to this conclusion, the Authority took into account the United Kingdom (UK) Home Office country information report of May 2016 which found that certain witnesses to war crimes are at risk of harm. However, the Authority observed that the appellant had faced no harm on account of this incident in the past and that the perpetrators, on the appellant's evidence, had been killed. He had not identified the killers, and was not a witness in any trial implicating the SLA. The authority also took into account that the appellant was only 10 years old at the time, and that the event occurred before the end of the conflict between the SLA and the LTTE in 2009.

Second claim - alleged assault of appellant and father in 2010

18    As summarised by the Authority, the appellant claimed that in October 2010 six men from the SLA came to his home and assaulted the appellant and his father. The appellant was hit in the right eye and fainted. When the appellant came to, his father was gone. The appellant was taken to hospital. He provided a certified copy of his hospital diagnosis report with his visa application.

19    The appellant's mother organised the search for his father. His mother was assisted by the village head man and they reported the incident to the police. The appellant provided a certified copy of the head man's report with his visa application.

20    His father was found about 14 days later and taken to hospital. The appellant's father said he had been taken by the SLA to an underground location, assaulted and then left in the forest. After he left hospital he went into hiding and did not return to the family home.

21    In a later statement, the appellant said that his father told him that the SLA had taken him because a villager told them he was a member of the LTTE. His father said that his older brother had been a member of the LTTE and had fled to India, but he (the father) was not a member of the LTTE.

22    The Authority acknowledged that the appellant had consistently made a claim along these lines, but found there were a number of discrepancies in the documents provided by the appellant: discrepancies in medical records about the father's injuries; references in medical reports to the father's injuries being sustained as a result of the 'war situation' although the war ended in May 2009; a report said to be from the village head man that referred to the appellant having been arrested, detained and having to report to authorities, although the appellant had not made such claims; and a letter that an attorney and notary public wrote, apparently after obtaining a verbal report from the appellant's mother, to the effect that the incident in October 2010 involved unknown persons entering the house, that the father was arrested by police personnel, and that the motive for the assault was support by the father and family for the Tamil National Alliance, matters that conflicted with the circumstances of the assault as described by the appellant.

23    Having regard to the inconsistencies and noting that it would have expected the mother to know the facts of the alleged assaults, the Authority did not accept this claim as truthful. It did not accept that the appellant and his father were assaulted in 2010, that any assault was reported to the authorities or that the appellant or his father went into hiding as alleged.

Third claim - arrest of his father in 2012

24    The appellant claimed that in May 2012 his father was arrested by the SLA after assisting a Tamil local member of parliament during the 2012 elections. He was allegedly held for a few days, beaten and then released. The SLA accused his father of being in the LTTE, which his father denied. His father then returned to where he had been staying in Jaffna (which was not where the family otherwise continued to live).

25    The letter from the attorney and notary public referred to this incident but said that the father had been noted by the police and army intelligence because he and the family had 'extended their political hand to the party of the Tamil National Alliance'.

26    Again, the Authority referred to discrepancies in the evidence as the basis for rejecting the claim. It noted that the appellant had claimed in his visa interview that in 2012 his father was in Jaffna in hiding. The appellant told the delegate that his father had come to the relevant town for four or five months during 2012 and was canvassing votes for the member of parliament during this time. In reference to the Tamil National Alliance, he indicated that his father supported the local member of parliament who was Tamil but 'from some other group'. The Authority found the evidence about the father's political persuasion and the timing of events to be confused and inconsistent. The Authority concluded that the appellant's evidence about the alleged claim to be confusing, vague and generalised.

Fourth claim - alleged abduction in 2012

27    The appellant claimed that in July 2012 he experienced an attempted abduction by people in a passing van, but some of his cousins were able to pull him away and took him home. His mother told his father, who said that the appellant's life was in danger, and soon after the appellant boarded a boat heading for Australia.

28    The Authority referred to country information about so-called white van abductions, acknowledging that such abductions have occurred in Sri Lanka, but that the incidence of abductions has greatly reduced since the change of government in 2015 (UK Home Office report, August 2016). It noted that DFAT had assessed that the number of abductions has dropped considerably, although there were credible reports of them occurring since the end of the conflict (2015 DFAT report). Having regard to the country information, the Authority considered the chance of the appellant being abducted in Sri Lanka to be remote.

29    The appellant submitted that the Authority should have taken into account the change in government (the reinstatement of the Rajapaksa and Gotabaya government in 2018 and 2019) and how this impacted on the prospect of increased abductions.

30    In this context, I note that the Authority delivered its reasons on 26 May 2017, and so it was not possible for it to have considered information from 2018 and 2019.

Fifth claim - chance of appellant being perceived as a person with links to the LTTE

31    The appellant did not claim before the Authority to be a member or supporter of the LTTE. The appellant raised for the first time in his visa interview that his paternal uncle was in the LTTE. He said his uncle went to India, but he did not know where he was at the time. He had previously said that his father's siblings were elsewhere. The Authority found the appellant's evidence on this point confusing and vague, but said that it gave the appellant the benefit of the doubt and accepted that one of the appellant's uncles was in the LTTE and went to India for a period of time, but returned to Sri Lanka. It did not accept the appellant's evidence that he did not know where his uncle lives.

32    The Authority also referred to the PTA which remained in force in Sri Lanka and under which the government could hold suspects for up to 18 months without charge. It noted that none of the appellant, his father or his uncle or any other family member had been detained under such or similar powers, and relied on this in support of its conclusion that none of those persons were perceived by the Sri Lankan authorities as being members of the LTTE, involved in government activities or advocating for a separate Tamil state. In coming to this view it referred to the DFAT report of 2015. Accordingly, the Authority concluded that the chance of the appellant being perceived as a person with links to the LTTE was very remote (paras 17, 19 and 31 of its reasons).

33    Over the course of 10 paragraphs the Authority considered a range of country information about the position of Tamils in Sri Lanka, citing information from reports prepared by DFAT, the United Nations High Commissioner for Refugees (UNHCR), the UK Home Office and other sources.

34    For example, the Authority said:

33.    … The change in government was supported significantly by the Tamil population and the new government has instigated positive changes. … According to DFAT and other sources before the delegate, under the new government of Maithripala Sirisena the forced registration of Tamils no longer occurs, most checkpoints have been removed, and the monitoring and harassment of Tamils in their day to day life has generally ceased. …

34.    According to DFAT and other country information before the delegate the Sirisena government has a more proactive approach to human rights and reconciliation than the previous government. …

35.    I note also that the United Nations High Commissioner for Refugees (UNHCR) in their current Eligibility Guidelines state that while real or perceived links with the LTTE may give rise to a need for international protection, originating from an area that was previously controlled by the LTTE does not, of itself, do so. The UK Home Office concurs …

36.    Both the UK Home Office and the UNHCR state that the priority of both the previous Rajapaksa government and the current Sirisena government is to prevent a resurgence of the LTTE and any moves towards Tamil separatism. …

37.    After assessing all the evidence I am satisfied that the applicant will not be regarded as a person who is working towards Tamil separatism, or resurgence of the LTTE, or to destabilise the Sri Lankan state. As such I am satisfied that he does not face a real chance of being detained or imprisoned or sent to a rehabilitation centre in Sri Lanka.

…

40.    In relation to persons suspected of links with the LTTE the UNHCR states that these may, depending on the individual circumstances of the case, include: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or 'cadres'; 3) Former LTTE combatants or 'cadres' who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, 'computer branch' or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

(footnotes omitted)

35    Having referred to the identified groups of people that the UNHCR and the UK Home Office consider at risk of being harmed in Sri Lanka, the Authority concluded:

41.    I have considered all the applicant's claims in this regard and after assessing all the evidence I am satisfied that the applicant is not considered by the Sri Lankan authorities to be a person with family links to the LTTE or to have been a member of the LTTE. I am satisfied that the applicant's profile and circumstances are such that he does not face a real chance of serious harm, including abduction, now and in the foreseeable future in Sri Lanka because he is Tamil, from the North, and will be imputed to be a supporter of the LTTE.

Sixth claim - that mother had been visited by the SLA

36    The appellant claimed that since his arrival in Australia the SLA had been to his mother's home and told her that they had arrested the appellant and demanded money to secure his release. As his mother knows that he is in Australia, she had not paid any ransom. Further, the appellant claimed that the visits have continued, and that the SLA demanded that he and his father report to them, despite them also knowing that the appellant has already left the country. It was not suggested that is mother was harmed by these visits.

37    The Authority rejected this claim, noting that the appellant had not raised them at his visa interview with the delegate, despite being given time to raise any claims or concerns. The Authority also took into account the other adverse findings that it had made as to the credibility of some of the evidence given by the appellant, as already referred to. The appellant submitted that the Authority should have taken steps to check with the 'proper authorities' about the claim and undertake due diligence.

Other matters

38    The appellant relied on other matters arising more generally from the Authority's reasons.

39    First, he contended that the Authority took into account only the 2015 DFAT report about Sri Lanka and it should have taken into account more recent information. The appellant referred to the reinstatement of the Rajapaksa and Gotabaya government in 2018 and 2019, and submitted that this again made Sri Lanka unsafe for Tamils. The appellant contended that it was wrong for the Authority to focus on the changes in Sri Lanka under the Sirisena government, and it should have considered that the Rajapaksa and Gotabaya government would return to govern Sri Lanka.

40    Second, the appellant also contended that the Authority failed to clarify discrepancies or inconsistencies with him, before reaching its decision.

Whether error identified on part of Authority

41    I do not consider that any of the matters raised by the appellant reveal jurisdictional error on the part of the Authority such that the primary judge should have allowed the review application. I will deal with them in turn by addressing the various claims.

First claim

42    The appellant submitted that the Authority should have accepted that he faced a real chance of harm if he were to be returned to Sri Lanka. The first claim is relevant to the Authority's reasoning in this regard. Although the Authority generally accepted this particular claim, it explained why it was not satisfied that the appellant faced a risk of harm from his involvement in the incident, referring to country information and the other matters to which I have referred at [17] above. Those matters fairly and sensibly provide a foundation for the conclusion and no jurisdictional error is disclosed. I deal more generally with the appellant's complaints about use of country information below.

Second claim

43    Contrary to the appellant's submission, the Authority observed that the appellant had made this claim consistently (at para 19 of its reasons). However, for other reasons it was not satisfied that the claim was truthful. The Authority took into account the appellant's evidence about the claimed assault in 2010, including the supporting documents, but when weighed with inconsistencies in the other evidence which the appellant had provided in support of this claim, the Authority considered the claim not to be credible.

44    The Authority explained why it did not accept the appellant's claim about him and his father being assaulted in 2010 having regard to the various inconsistencies, and I have referred to its reasons above at [22]-[23]. It was open to the Authority, on the basis of the inconsistencies, to find the claim was not credible.

45    The primary judge referred to the Authority's reasons and identification of the discrepancies, and rightly acknowledged that the assessment and weighing of the evidence was a matter for the Authority.

46    While the appellant may disagree with those findings, there was a reasoned and rational basis for the conclusions reached by the Authority, and no error is disclosed in the primary judge's conclusion to this effect.

Third claim

47    Again, as appears from the above reasons (at [25]-[26]), the Authority referred to discrepancies in the evidence as the basis for rejecting the claim. Those discrepancies provided a logical basis for concluding that the appellant's evidence about this claim was unconvincing. Again, it was for the Authority to assess and weigh the evidence before it. The reasons reveal that it did so in a reasoned manner. No jurisdictional error on the part of the Authority is disclosed and it follows that there was no error on the part of the primary judge in failing to come to any different view.

Fourth claim

48    It can be accepted that the Authority did not expressly state whether or not it accepted the appellant's claim about an attempted abduction. Instead, it dealt with this part of the claim having regard to country information. That is, regardless of whether the abduction may have occurred, it addressed the prospect of abduction if the appellant were returned to Sri Lanka having regard to country information.

49    The appellant submitted that the Authority should have taken into account more current country information in this regard, including a 2016 report that the appellant sought to rely upon before the primary judge (the manner in which the Authority generally relied upon country information is addressed separately below under 'Other matters').

50    I note the Authority had already found (at para 17 of its reasons) that the appellant, his uncle and his father were not of interest to the SLA or perceived to be members of the LTTE. It had already addressed this claim in detail and rejected it (see in particular [31]-[35] above). It is apparent from the primary judge's reasons (at para 45) that he considered that because the Authority had already made that finding, supported by country information, there was no basis for finding that any abduction occurred because of a perceived link to the LTTE. There is no error revealed in the primary judge's reasons in this regard.

51    The Authority had rejected the appellant having any perceived LTTE links and, accordingly, the Authority addressed the prospect of risk of abduction upon return, taking that finding into account.

52    Against the background of the appellant having no perceived links to the LTTE and the country information relating to the considerable reduction of the incidence of abductions, it was open to the Authority to conclude that the chance of the appellant facing abduction, including abduction in a van, was remote.

53    I also note that it is apparent from the primary judge's reasons relating to the risk of abduction that the appellant sought to rely on an article that was not before the Authority that abductions and rapes were occurring even under the new Sri Lankan regime. The primary judge did not admit the article into evidence on the basis that it had not been before the Authority and could only have been relevant to the merits of the visa application rather than any jurisdictional error.

54    The authorities support the primary judge's approach: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27]. While the country information the appellant provided may have contained different (or contradictory) information to that relied upon by the Authority, the purpose of seeking to tender the documents was to invite the primary judge to disagree with a factual conclusion reached by the Authority and an invitation for merits review. It was not open to the primary judge to admit the document as fresh evidence and make findings of fact which contradicted those of the Authority: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [55].

55    The primary judge concluded that no jurisdictional error was established relating to the Authority's treatment of this claim. There is no error disclosed in the primary judge's conclusion in this regard.

Fifth claim

56    I have set out above at [31]-[35] the various matters referred to by the Authority in concluding that the appellant is not considered by the Sri Lankan authorities to be a person with family links to the LTTE or to have been a member of the LTTE, and that his profile and circumstances are such that he does not face a real chance of serious harm.

57    Despite the appellant's submissions to the contrary, it is apparent the Authority considered and made findings about any LTTE links (at paras 15-23 and 31-41 of its decision). The Authority considered the powers under the PTA (at paras 17 and 34), and also considered the appellant's circumstances upon return, having regard to country information (at paras 46-53). Critically, as noted, the Authority found that the appellant is not perceived as a supporter of the LTTE (at para 51). Again, whilst the appellant does not agree with these findings, the Authority provided a properly reasoned basis for them, having regard to the materials before it.

58    The primary judge appropriately noted the matters referred to by the Authority in coming to its conclusion, and there is no error disclosed by the primary judge in dismissing this ground of review.

Sixth claim

59    The appellant's criticism of the Authority's purported failure to undertake due diligence and its failure to put inconsistencies to him is misconceived, having regard to the statutory regime reflected in Part 7AA. The Authority was not obliged to conduct a hearing or to undertake further inquiries. I have summarised the relevant provisions at [11] above. Further, the appellant had the opportunity to provide additional information to the Authority but did not seek to do so. The primary judge properly referred to these provisions and their application (at, for example, paras 41 and 51-52 of his reasons). No error is disclosed in the approach of the Authority or the primary judge in this regard.

Other matters

60    An overarching submission made by the appellant was that the Authority should have relied on other and more recent country information than the 2015 DFAT report.

61    The Authority was required, as part of the lawful performance of its task and discharge of its duties under the Migration Act, to review the visa refusal decision by reference to the situation in Sri Lanka as it stood at the time of its review. The 2015 DFAT report was relatively recent at the time of the Authority's decision.

62    As stated by Mortimer J in DIJ16 v Minister for Home Affairs [2019] FCA 1038:

[37]    …In any event, the 2015 DFAT report was intended to be a comprehensive source for decision-makers and cross-referenced to other sources of information. It is not inappropriate for the Authority to focus on a document such as this, particularly in the absence of any submissions or material from a referred applicant suggesting a source of country information is inaccurate or unreliable, and in the absence of submissions or other material from a referred applicant expressly directing the Authority to other particular parts of different country information. …

63    Further, the Authority did not refer only to the 2015 DFAT report in its reasons. It cited various other country information, including from 2016 (reports of the UK Home Office May 2016 and August 2016).

64    Based on the hearing before the primary judge, it appears that the appellant submits that the Authority should have considered a report dated October 2016, which was apparently called 'Information Report: Sri Lanka October 2016'. The primary judge rejected its tender on the basis that it was not before the Authority, and in the circumstances where the appellant had been afforded the opportunity to request the Authority take it into account as new information but had not so requested. The primary judge also concluded that it should not be admitted because the appellant sought to rely on it to criticise the merits of the Authority's findings as to the prospect of his abduction upon return, rather than to assert any jurisdictional error.

65    The report was not before this Court. Its provenance is unknown. Based on its reasons, the Authority had before it a large amount of country information, and there was nothing before it to suggest that that country information was not appropriately complete at the time of the review.

66    In those circumstances, and having regard to the primary judge's reasons, I am not persuaded that the primary judge was in error in failing to admit the document into evidence. However, regardless of the reasoning of the primary judge, it is important to also consider whether the conduct of the Authority discloses jurisdictional error by way of failure to comply with the implied condition of reasonableness, an argument in the appellant's favour raised by the Minister (see [5] above).

67    I am not persuaded that the Authority failed to properly discharge its function in carrying out its review by having regard only to that country information that was before it and to which it referred in its reasons. Its choice in this regard does not disclose unreasonableness, as that term is understood in this context: ABT17 v Minister for Immigration and Border Protection at [20]. That is, the decision to rely on only that country information provided by the Secretary reflects an intelligible decision-making process, in circumstances where the appellant did not seek to have new and other country information referred to, and there is no suggestion that the information provided by the Secretary was relevantly incomplete or outdated.

68    As to the allegation about an alleged failure to put inconsistencies in evidence to him and an absence of due diligence, I have dealt with this at [59] above. The allegations do not have substance when viewed in the context of the prescribed obligations on the part of the Authority under Part 7AA.

Purported new ground of appeal

69    As noted above, at the hearing the appellant purported to raise a new matter, being an allegation that the manner in which the hearing proceeded before the primary judge (conducted by Microsoft Teams during the difficult COVID19 period of 2020) made it difficult for him to provide documents and that there were issues with the reliability and audio of the video connection.

70    There was no evidence before this Court as to what transpired at the hearing before the primary judge, other than by reference to the primary judge's reasons. Those reasons do not disclose that there was any issue with the video link.

71    The appellant claimed to have had difficulty providing documents at the hearing. I take into account that he was able to seek to tender the document that I have referred to (at [64]-[65]) which was rejected by the primary judge. I also take into account that the reasons of the primary judge refer to the date of commencement of the proceeding (some three years before the hearing) and the fact that in response to directions of a registrar, the appellant had the opportunity to file an amended application, affidavit evidence and written submissions. In response to those directions, he filed an amended application and written submissions which were referred to by the primary judge.

72    In those circumstances, where the Minister was not provided with any prior notice about the intention to raise an issue about the hearing, and where there was no evidence adduced about any issue with the reliability of the hearing link that may have caused any real prejudice to the appellant, I would not grant leave to the appellant to amend his grounds of appeal to rely on it. In my view the proposed new ground has no real prospect of success.

Request to this Court to take into account new country information

73    The appellant repeated on a number of occasions during the hearing that the political situation in Sri Lanka has declined since the time of the Authority's decision, and to the extent previous country information suggested that conditions had improved, that should now not be given weight. Rather, he submitted, the current situation is such that the country is again unsafe for Tamils.

74    In that context the appellant sought to rely on internet reports about the political situation in Sri Lanka dated 19 November 2019 and 21 January 2020 respectively. However, it is not appropriate that I take them into account. The request was in effect a request to give evidence comprising country information based on events subsequent to the Authority's decision in order to falsify the Authority's factual decision. Such a course is not permitted: Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249; and SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [56]-[57] .

75    To the extent the appellant submitted that the Authority and the primary judge should have anticipated that there may be a change in the political situation in Sri Lanka in the future, that was inviting no more than speculation and failure to do so does not reflect any error. The Authority properly considered the appellant's fear of persecution and whether there was a real risk of significant harm, within the framework of s 5H(1), s 36(2)(a), s 36(2)(aa) and s 36(2A) of the Migration Act, including foreseeable consequences.

No error on part of primary judge established

76    It follows that the appellant has failed to establish that the Authority's reasons were open to the challenges he raised before the primary judge, and he has failed to establish error on the part of the primary judge.

77    Accordingly, the appeal must be dismissed. The appellant is to pay the Minister's costs to be fixed by a registrar if not agreed.

Associate:

Dated:    24 October 2023