Federal Court of Australia

CCM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1619

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 4 May 2017. The Authority had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the first respondent to this appeal, the Minister, then was) not to grant the appellant a Safe Haven Enterprise (Subclass 790) visa (SHEV). The appeal was heard in conjunction with CCL17 v Minister for Immigration, Citizenship and Multicultural Affairs (VID 559 of 2022), which concerned the appellant’s twin brother. The parties’ submissions addressed both appeals together, given that the appellants relied upon the same grounds of appeal before this Court. Accordingly, in the reasons that follow, reference is made to “the appellants” collectively, although any reference to “the appellant” is a reference to CCM17 alone.

2    At a high level, the appeal concerned certain aspects of the process by which the Authority decided to affirm the delegate’s decision not to grant a SHEV to each of the appellants. The Notice of Appeal raised three grounds of appeal, which gave rise to three overarching issues. The first was whether the Authority erred by failing to conduct, to the extent required in the circumstances, a de novo review of the appellants’ visa applications. The second was whether the Authority’s apparent misapplication of s 473DD of the Migration Act 1958 (Cth) (the Act) in relation to a new claim raised before it by the appellants was a material error. The third was whether the material required for the Authority to conduct its review was provided properly by the Secretary of the Department of Immigration and Border Protection (the Secretary) in accordance with s 473CB of the Act. Ultimately, for the reasons set out below in respect of each of those three grounds, the appeal should be dismissed.

Did the appellants establish appellable error?

3    At the outset, it bears mentioning that, although the appeal to this Court was by way of rehearing, it was nonetheless necessary for the appellants to show that the judgments from which they appealed were infected by error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 [11]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 555 – 556 [30]. It was submitted on behalf of the Minister that the appellants had not demonstrated any appellable error on the part of the primary judge, such that they were, in effect, merely asking this Court to reconsider the applications for judicial review that were made to the lower court. Whilst there is perhaps some force in that submission, a closer consideration of the primary judge’s reasoning does reveal certain points of concern, and it is appropriate to proceed on the basis that an appellable error has at least been alleged as part of each ground of appeal.

Background

4    The appellant and his brother, CCL17, are Sri Lankan citizens of Tamil ethnicity. They arrived in Australia as undocumented and unauthorised maritime arrivals on 10 September 2012, having travelled to the country in the company of their uncle.

5    On 30 September 2015, the appellant applied for a SHEV. CCL17 was listed as a secondary applicant on the appellant’s application and made no protection claim of his own.

6    The appellant claimed that he and his brother had been raised by their uncle in Sri Lanka. He asserted that, one day in August 2012, his uncle returned to their home and told them that they needed to leave Sri Lanka immediately, and that arrangements for their departure had already been made.

7    At and prior to that time, the appellants had been living in Colombo, where they were born. They had lived there with, and under the care of, their uncle and grandmother.

8    Each had attended school until halfway through year 10, when they left to come to Australia.

9    Prior to their departure, in 2007, the appellants’ uncle travelled to Saudi Arabia for two and a half years and then to Qatar. It was said that he worked in those countries so as to be able to send money back to their grandmother. It was further claimed that, after returning to Sri Lanka, their uncle never stayed at home for more than a few days or a week at a time, and that this behaviour continued until they all left the country. The appellant said that he did not know where his uncle was during these absences. In his SHEV application, he stated that, since his departure, the Criminal Investigation Department (CID) had attended at the family home and questioned his grandmother about his whereabouts and that of his uncle, brother and cousin.

10    The appellant claimed that it was not until he and his brother had arrived in Australia and met with their lawyers in August 2013 that they learned of their uncle’s problems with the Sri Lankan Government and the CID, and his involvement with the LTTE. According to information provided in the appellant’s SHEV application, his uncle was not an LTTE fighter, but had associations with people within that organisation. He had allegedly engaged in some low-level work for it, which involved transporting vehicles to different parts of the country.

11    The appellant further claimed that his uncle had experienced a lot of problems with the Sri Lankan authorities because of his association with the LTTE, which meant that he was not able to stay in one place for very long. It was apparently for this reason that his uncle perceived it to be necessary for his nephews, the appellants, to leave Sri Lanka with him.

12    The appellants claimed to fear harm if they were returned to Sri Lanka due to their connection with their uncle and their uncle’s involvement, or perceived involvement, in the LTTE. It was also claimed that they may be harmed because they were young Tamils who had left illegally and were now failed asylum seekers, and because they would be imputed to be LTTE supporters.

13    The appellants attended a SHEV interview with a delegate of the Minister on 28 January 2016. In the context of this appeal, they relied specifically upon the following conversation that took place during that interview:

Tribunal:     Maria, is there anything you would like to say on behalf of your clients?

Ms Sihergios:     Yes. I’ll begin by saying that the complicating factor in this case is that I’m not aware of the uncle’s claims, but I am instructed that he was interviewed yesterday. So, to put it crudely, I’m almost flying in the dark with the submissions that I’m about to make, but I obviously stand to be corrected in terms of any decisions that follow. But if there is any connection between my clients’ uncle and the LTTE, then their fears of serious harm if returned to Sri Lanka are more than well founded.

…

And you’re right to point out that their claims are heavily reliant on their uncle’s and that’s also reflective in – I would argue their capacity to give a lot of details about their uncle’s involvement that doesn’t in any way diminish the risks that they face if they are returned.

…

As I said I’m hesitant to overstate the case because I’m not aware of the uncle’s claims …

14    On 21 November 2016, a delegate of the Minister refused to grant the appellant a SHEV. For that reason, CCL17’s application was also refused.

15    The delegate stated in his decision that he did not accept that the appellants’ uncle had a well-founded fear of persecution for the reasons that he had claimed. It followed that the delegate did not accept that the appellants had a well-founded fear of persecution insofar as it related to their association with their uncle.

16    The delegate’s decision was referred to the Authority for review.

17    On 14 March 2017, the Authority wrote to the appellants, inviting them to comment on certain updated country information that it had obtained — being the most recent Department of Foreign Affairs and Trade “Country Information Report on Sri Lanka”, which was issued on 24 January 2017 (the 2017 DFAT Report). That country information had been published after the delegate’s decision. The appellants provided submissions in response to the Authority’s invitation on 4 April 2017.

18    Subsequently, on 4 May 2017, the Authority affirmed the delegate’s decision not to grant protection visas to the appellants.

19    The appellant filed an application for review in the Federal Circuit Court (as it was then known) on 16 May 2017, and a further amended application on 23 August 2022.

20    On 30 August 2022, his application was dismissed. CCL17’s application was dismissed for the same reasons.

21    There is no need to address in detail the primary judge’s decision at this point. It suffices to say that the appellants’ claim on appeal is, essentially, that the primary judge failed to engage properly with, and to accept, their submissions as to the defects in the Authority’s decision as to their case.

The issues for consideration

22    Three grounds of appeal were relied upon, the first and third of which were closely related. During the hearing, the parties considered it most appropriate to address the second ground first, followed by the first and third grounds. The same order is adopted in these reasons.

Ground 2 – materiality of the Authority’s misapplication of s 473DD of the Act

23    The substance of the second ground was that the Authority erred in its application of s 473DD of the Act by failing to consider whether certain “new information” met the criteria stated in s 473DD(b)(ii), and that error had a material effect on the outcome of the review.

24    Relevantly, s 473DD of the Act provides:

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.

25    The issue in relation to the “new information” arose as a consequence of the Authority having invited the appellants to comment on the 2017 DFAT Report that it had obtained, as noted earlier in these reasons. That report concerned, inter alia, the socio-political conditions in Sri Lanka — including, specifically, the treatment of Tamils. The appellants’ submissions in response to the Authority’s invitation included a new claim that, as young Tamils living in Colombo, they had been subjected to search and round up operations conducted by the police and were always subject to harsh treatment at checkpoints, where they were asked to produce their ID cards and were interrogated about their movements. In an attempt to explain their failure to raise this new claim at an earlier time, the appellants pointed to a number of factors. Essentially, it was said that they had lacked capacity and had been too timid or afraid to raise the issue of their alleged mistreatment in Colombo when they first arrived in Australia.

26    The Authority’s conclusion as to whether or not it ought to consider this claim, applying s 473DD of the Act, was stated as follows at [18] of its decision:

I do not consider that this information was provided by way of a response to or comment on the information in the 2017 DFAT Report, and I am not satisfied that this new information about the applicants’ claimed circumstances prior to their departure from Sri Lanka could not have been provided to the Minister before the decision was made. Even accepting that their circumstances at the time of the entry interviews were as claimed in the submission and prevented the applicants from providing this information, they were legally represented in relation to their SHEV application which was made three years after their arrival in Australia, and I am satisfied that they had every opportunity to put these claims forward when completing that application, and at the SHEV interview, at which they were accompanied by their representative and were specifically asked about any problems they had experienced in Colombo. I am not satisfied that there are exceptional circumstances to justify considering the information and I have not done so.

27    It was not in doubt by the time the matter reached this Court that, in applying s 473DD, the Authority was required to adhere to the process of reasoning described by a majority of the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, 501 – 502 [11] – [12] (AUS17). Specifically, it was required to assess any new information that it obtained first against the criteria in s 473DD(b)(i) and (ii), and then, only if the information satisfied the criteria in either or both of those paragraphs, against the criterion in s 473DD(a). As part of the latter assessment, it was required to take into account the circumstances by which the relevant criteria in s 473DD(b) had been satisfied. Put another way, if the new information satisfied either or both of sub-s (b)(i) or (ii), then sub-s (a) fell to be considered, at which point the fact that the information had satisfied either (b)(i) or (ii) was to be taken into account.

28    As set out above, the Authority concluded at [18] that it was not satisfied that the appellants’ new claim as to their alleged mistreatment in Colombo could not have been provided to the Minister before the decision was made. That was, in effect, a finding that s 473DD(b)(i) was not met. The Authority then went on to conclude that it was not satisfied that there were exceptional circumstances to justify considering the new information. Thus, the criterion in s 473DD(a) was found not to have been met. Having so concluded, the Authority declined to consider the new claim advanced by the appellants in their submissions.

29    It has not since been argued that the Authority erred in its conclusion as to s 473DD(b)(i). The appellants have submitted, instead, that the Authority failed altogether to consider s 473DD(b)(ii) and the criteria within it, such that it failed to take account of a mandatory relevant consideration in its purported application of the criterion in s 473DD(a): see AUS17 at 502 [12].

30    That submission should be accepted. It is apparent that the Authority did not consider whether it was satisfied that the appellants’ new claim met the criteria in s 473DD(b)(ii) before it turned its attention to s 473DD(a). The High Court’s decision in AUS17 (in particular, at 501 – 502 [11] – [12], 503 – 504 [17] – [20]) requires that, in applying s 473DD, “the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a)”: BXT17 v Minister for Home Affairs (2021) 283 FCR 248, 285 – 286 [139] (BXT17). It follows, and it was not seriously suggested otherwise, that the Authority misapplied s 473DD in this case in relation to the appellants’ new claim as to their alleged mistreatment in Colombo.

31    The possible existence of that error was appreciated by the primary judge, who held (at [27] – [28]) that, even if the Authority had failed to consider s 473DD(b)(ii), that error was immaterial. Accordingly, there was no jurisdictional error.

32    Materiality is by now a familiar concept in administrative law: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45] – [48]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 520 – 524 [29] – [39]. In the recent decision of Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (Nathanson), the plurality (comprising Kiefel CJ, Keane and Gleeson JJ) identified the proper approach to assessing materiality as an element of jurisdictional error in the following terms (747 – 748 [32] – [33]):

[32]     As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.

[33]     There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

(Citations omitted).

33    Their Honours’ comments, particularly at 748 [33], were made in relation to an error that took the form of a denial of procedural fairness. The appellant had not been afforded an opportunity to respond to allegations made in the course of a Tribunal hearing, which were later taken into account in the Tribunal’s reasons.

34    The circumstances in the present case are rather different. Here, during its review, the Authority afforded the appellants an opportunity to make submissions in relation to new information on which it was intending to rely, being the 2017 DFAT Report. In their submissions, the appellants included a new claim — effectively seeking to rely on additional evidence relating to their experiences in Colombo. The Authority was not required to accept that claim or the evidence underlying it insofar as it constituted new information: s 473DC(2). However, it appears that it did accept it, at least for the purpose of assessing whether the new information could be considered in accordance with s 473DD. In carrying out that assessment, it misapplied the statutory provision, as explained above.

35    This was not a case where the appellants were denied a right to be heard (or procedural fairness in any other form). They had no right to make the new claim in relation to their experiences in Colombo. On the contrary, the Authority was entitled to determine the matter without receiving that claim. It does not matter that the claim was included in the appellants’ submissions in response to the invitation to comment on the 2017 DFAT Report. All that the Authority was required to do, having invited the appellants’ comments in relation to the updated country information, was to receive and consider the response that it obtained insofar as it pertained to that country information. It could not reasonably be required to consider whatever material the appellants sent back, no matter its connection to the original invitation. In that respect, it should be noted that the Authority expressly stated (at [17] of its decision) that it did not consider the new claim to have been put forward in response to the invitation to comment on the 2017 DFAT Report. Despite that, it purported to apply s 473DD to ascertain whether or not it was permissible to consider the new claim.

36    Another important distinction from the circumstances in Nathanson is that, here, the appellants in fact advanced before the Authority the further evidence in relation to the new claim that they sought to have considered. That being so, the Court is not left to speculate about what evidence might have been called, as it generally is in a situation where a party is denied a right to be heard. Instead, the Court can assess the potential effect that the appellants’ new information and the evidence underlying it could have had on the Authority’s decision.

37    In this connection, the Minister sought to demonstrate the correctness of the primary judge’s conclusion as to the materiality by submitting that there was no realistic possibility that, had the Authority accepted and considered the appellants’ new claim as to their mistreatment by the authorities in Colombo, a different conclusion would have been reached. For the reasons set out below, that submission should be accepted.

38    First, the new allegations that the appellants had been subject to search and round up operations conducted by the police, and were always subject to harsh treatment at checkpoints, were pitched at a very high level of generality without supporting detail. Their new claim was, in effect, a mere assertion that certain events had occurred. The claim was made in a set of submissions that appears to have been authored by the appellants’ legal representatives (given that it described the appellants in the third person), even though the documents were signed by the appellants personally. There was no direct statement from the appellants, or either of them, about the events in question. They had not mentioned the events at either their entry interview or their SHEV interview, or at any stage during the several years that they were in the country prior to the Authority issuing its invitation to respond to the 2017 DFAT Report. This is despite the fact that, at all times throughout the visa application process, they had legal representatives to assist them to advance the relevant allegations and evidence. In effect, then, the new claim was a belated, high-level assertion, which was not supported by any evidence or any adequate explanation as to why it had not surfaced earlier. The Authority would have been entitled to deal with the claim in accordance with the amount of detail that was provided. Even if it is assumed that the claim was received and considered as new information, there is no realistic prospect that it could have affected the outcome of the review: cf AXV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 121 [45].

39    Secondly, and more importantly, the Authority did in fact consider whether the appellants, if they were to be returned to Sri Lanka, would suffer harm due to their status as young Tamil males. At [33] of its decision, the Authority specifically noted that it had considered whether they would be imputed to hold pro-LTTE opinions because of their personal characteristics, including their Tamil ethnicity. In this context, at [34], it addressed country information indicating that, at the end of the civil war, a large number of LTTE members were arrested and detained, and many civilians were questioned and monitored. It also noted that the Sri Lankan security authorities remained sensitive to the potential re-emergence of the LTTE, and continued to monitor Tamil populations in the Northern and Eastern Provinces, although it appeared that the highly oppressive monitoring and registration regime in place just after the war was being eased. Some Tamils continued to be monitored, arrested and detained, and there continued to be security crackdowns. It accepted, in the circumstances, that some people “may continue to be at risk of harm because of their actual or imputed political opinions, especially if they are taken into detention by security authorities”. However, it then found at [35] that:

… the applicants have no direct connection with the LTTE and have never been imputed by the authorities to have any direct connection with the LTTE. In these circumstances, and given the changed security conditions in Sri Lanka, indicating a different focus on the part of the authorities as to who might be of adverse interest in relation to LTTE connections or activity, I am satisfied that there is no real chance that they would be subjected to harm now or on return to Sri Lanka in the reasonably foreseeable future as persons with suspected LTTE connections for any reason including … the fact that they are young Tamil males …

40    In this way, the Authority found that, whilst certain groups in Sri Lanka continued to face a risk of mistreatment because of their actual or imputed political affiliations, the appellants did not fall within those groups. In particular, there was no reason to believe that they would be subjected to harm on account of the fact that they were young Tamil males. Accordingly, it seems unrealistic to expect that the Authority’s decision could have been affected by consideration of the new claim that, at some unspecified time in the past, the appellants had been subjected to search and round up operations and harsh treatment at checkpoints because they were young Tamils.

41    It is necessary, also, to keep in mind the temporal distance between the alleged events the subject of the appellants’ new claim and the Authority’s decision. The claimed mistreatment of the appellants must have occurred at some time prior to their arrival in Australia in September 2012. The Authority delivered its decision on 4 May 2017. Within the intervening period — but, relevantly, much closer to the later end of it — the 2017 DFAT Report was published, which indicated (inter alia) that the political environment in Sri Lanka had changed, that there had been a dramatic improvement in the security situation since the end of the civil war, and that there had been a decrease in instances of discrimination against Tamils (as recounted by the Authority at [14] of its decision). The Authority clearly had regard to the country information contained in the 2017 DFAT Report. Therefore, even assuming that it had accepted the appellants’ new claim, it would have been open to it to regard the events the subject of the claim as having diminished significance in light of the circumstances now prevailing in Sri Lanka. In other words, because the appellants’ new claim related to historical conditions, it could have little to no tangible impact on the Authority’s acceptance of the veracity of the contemporaneous 2017 DFAT Report.

42    For these reasons, there was no realistic possibility that the new claim could have affected the Authority’s decision. The misapplication of s 473DD that led to the erroneous exclusion of the claim from the Authority’s consideration was immaterial. The finding of the primary judge to this effect was correct.

43    Having drawn this interim conclusion, it is appropriate to step through the various arguments put by the appellants against it. With respect, none of those arguments warrants reconsideration of the result.

44    In their written submissions, the appellants complained that the primary judge gave no reasons for his finding of immateriality, save to reproduce a passage from the Full Court’s judgment in BXT17 — which, they contended, was irrelevant since it concerned distinguishable circumstances. The same complaint was also advanced in more detail by Counsel for the appellants during the hearing of the appeals. Plainly, it has merit. In his reasons, the primary judge made a finding as to the immateriality of the s 473DD error and then “adopted”, apparently in support of that finding, what was said at 285 – 287 [139] – [146] of BXT17. However, the reasoning of the Full Court in the lengthy passage that his Honour quoted does not lend any clear support to such a finding in the present case, since the Full Court was there addressing a relevantly different set of facts: in BXT17, the Authority was found effectively to have had regard to the s 473DD(b)(ii) criteria in its consideration of s 473DD(a), such that its omission to consider those criteria before turning to the latter sub-section had no real consequences for its decision. It may be that the primary judge’s intention was to convey a similar conclusion in this case, to the effect that the Authority’s misapplication of s 473DD was immaterial because it had, in substance, considered the new claim. It is debatable whether that conclusion could actually be open on the facts at present. Regardless, the process of reasoning adopted by the primary judge, with respect, leaves his Honour’s intention far from clear. The appellants’ submission that the primary judge’s reasoning on this point involved an appellable error should be accepted. However, that does not detract from the interim conclusion drawn above. The very general terms in which the appellants’ new claim was raised, and the Authority’s findings as to the appellants’ circumstances in light of the country information before it, still suffice to show that its misapplication of s 473DD was immaterial.

45    The next point made in the appellants’ written submissions was that the misapplication of s 473DD was material because the new information contained “claims, or integers of claims, that were capable of supporting a finding that the appellants were owed protection”. It was said that this was “particularly clear when one has regard to [34] of the [Authority’s] reasons, where [it] referred to country information that some Tamils still continued to be monitored, arrested and detained and the fact they had experienced police searches and round up operations, harsh treatment at checkpoints and interrogation about their movements was an indication of likely future harsh treatment”. There is an unfortunate gap in this submission, in that it has not actually been explained how the Authority’s reasoning at [34] lends support to the proposition that the appellants’ new claim could encourage a finding that they were owed protection. As explained above, the reasoning in that paragraph seemingly has the opposite effect. The Authority’s consideration, at [34], of the country information before it allowed it to identify a class of persons that might face a risk of harm in Sri Lanka. At [35], it found that the appellants did not fall within that class — notwithstanding the fact that they were young Tamil males. This does not support the proposition that, if the appellants’ claim as to their mistreatment as young Tamil males had been considered, a finding that they were owed protection would more likely have been made.

46    In the hearing, a different complexion appeared to be cast on this submission. Counsel for the appellants directed the Court to [34] of the Authority’s reasons in order to point out two alleged problems:

(a)    first, that the assessment in that paragraph had been performed “in the absence of the evidence that the appellants put forward”, such that it was realistically possible that the Authority could have been persuaded that “checks are still being carried out in Colombo … and that young Tamil males are frequently being detained and interrogated”; and

(b)    secondly, that the paragraph made no mention of the treatment of the Tamil minority in Colombo, which was the geographical focus of the appellants’ new claim.

47    The overall thrust of the submission was explained as being that, in the counterfactual scenario where the new claim was considered, there was a realistic possibility of a different conclusion being drawn because the Authority would have been required to weigh the claim against the generic country information before it. In doing so, it could have preferred the “direct evidence” of the appellants over that country information, or permitted the evidence to change its perception, or exercised its power under s 473DC to seek further information from the appellants about the new claim.

48    With respect, these contentions cannot be accepted.

49    The first contention essentially theorises that, if the appellants’ new claim was considered, then the Authority could have been persuaded that the events the subject of the claim were still ongoing in Colombo, and this might have led it to conclude that the appellants were owed protection obligations. However, the possibility of the Authority having engaged in that process of reasoning is unrealistic on its face. In the first place, as noted above, a significant period of time passed between the events the subject of the appellants’ new claim and the Authority’s decision, during which it received the 2017 DFAT Report indicating (amongst other things) that the security situation in Sri Lanka had dramatically improved. The appellants’ new claim did not purport to speak to the situation in Sri Lanka as at the time of the decision. Even assuming that the events to which the appellants referred had in fact taken place prior to September 2012 in the manner claimed (which is no easy step), the natural conclusion to be drawn would be that those events had been overtaken by socio-political changes in the country. The conclusion for which the appellants now advocate would, by contrast, require the Authority to assume that those historical events were continuing at least four years later, despite the appellants not having said that they were and despite contemporaneous country information suggesting that circumstances in Sri Lanka had changed. It would then have to rely on the possibility of those events reoccurring to overcome its finding, derived from the country information, that the appellants did not fall into a class of persons that faced a risk of harm in Sri Lanka. That is not a path down which the Authority could realistically have been expected to go. The first contention does not show that the misapplication of s 473DD was material.

50    The second contention places considerable emphasis on the references in the country information to the Northern and Eastern Provinces of Sri Lanka. It proceeds on the basis that the mention of the risks in those areas is to be contrasted with the lack of mention of any risks in Colombo, which in the appellants’ view leaves uncontradicted their new claim about events specifically in that city, allowing that intact claim to have had a material impact on the decision. So understood, the contention seems to overlook the implications to be drawn from the focus in the country information on the Northern and Eastern Provinces, being that the risks of harm that remained in Sri Lanka after the change in government and the end of the civil war were concentrated in those regions and not elsewhere. The overall tenor of the country information was that the security situation in the country had improved, but there were still risks for certain people in particular areas. There is considerable difficulty in taking it, instead, as an indication that, while there were those risks in particular areas that warranted mention, there might also be other risks in different areas that, for whatever reason, did not warrant mention. That approach arguably entails too formulaic an analysis, fixating on the inclusion or omission of specific concepts in the reasoning without appreciating the broader point that it conveys.

51    In any event, neither of the two contentions addresses the inherent weakness of the appellants’ new claim, as explained above. While Counsel for the appellants described the claim on multiple occasions as “direct evidence” and “specific evidence”, it was not actually susceptible to either of those descriptions. Though it was suggested that, if the claim had been considered, it might at least have inspired the Authority to seek further information under s 473DC, that suggestion assumes a course of action that could not realistically be expected to be undertaken in the circumstances. Section 473DC(2) expressly recognises that the Authority has no duty to get or request new information in this way. Moreover, the Authority in this case specifically found (at [18]) that the appellants “had every opportunity” to put these matters forward in their SHEV application and their SHEV interview, at which they were accompanied by their representative and specifically asked about any problems that they had experienced in Colombo. This suggests that the Authority was, quite fairly, sceptical of the appellants’ belated introduction of a new claim about events several years prior that were described in very general terms.

52    Finally, the appellants’ written submissions advanced the proposition that:

… there is a realistic possibility that [the Authority] might have inferred that the police searches and round up operations, harsh treatment at checkpoints and interrogation about their movements that the appellant[s] … had experienced demonstrated that there was a risk of harm due to the boys’ connections with their uncle.

53    This proposition is dealt with sufficiently in the Minister’s written submissions. As pointed out there, the appellants’ new claim did not suggest any connection with their uncle. Instead, it explicitly said in the case of the appellant (and, separately, for CCL17) that the alleged events the subject of the claim took place “all because he was a young Tamil”. It was therefore pure speculation to suggest that, if the Authority considered the claim, it would have drawn a link between the alleged events and the appellants’ connection with their uncle. It could not realistically be expected that the Authority would go beyond the limits of the new information provided by the appellants in this way.

54    It follows that the appellants have not established that the Authority’s misapplication of s 473DD was material. They have not demonstrated any error in the primary judge’s conclusion on this ground.

55    It might also be added that the appellants did not make any concerted attempt to persuade the Court that, had the Authority not erred in its application of s 473DD, it would then have concluded that it should consider the appellants’ new information. Their written submissions merely asserted that the Authority “could have found that there were exceptional circumstances to justify considering the information”. In this sense, a logical step in the progression of the second ground of appeal seemed to have been overlooked. It was for the appellants to establish that there was a realistic possibility that the Authority would have accepted that there were exceptional circumstances warranting consideration of the new claim. That task may have been rather difficult in circumstances where the Authority had already rejected the proposition that the new claim could not have been provided to the Minister before his decision was made (pursuant to s 473DD(b)(i)). Indeed, as noted above, it expressly pointed out that the appellants had been afforded clear opportunities to put forward the information on prior occasions, during which time they were legally represented. Ultimately, as this aspect of the materiality counterfactual was not argued, there is no need to address it further.

56    For the foregoing reasons, the Authority’s misapplication of s 473DD was immaterial. The primary judge was correct so to conclude. The second ground of appeal fails.

Ground 1 – did the Authority conduct a de novo review

57    The appellants’ first ground of appeal was developed in a somewhat complicated manner, and it is therefore necessary to set out precisely what was said at each stage of the appeal.

58    In their Notice of Appeal, it was claimed that the primary judge had erred in not finding that the Authority had not conducted a de novo review because it had instead “adopted the conclusions of the primary delegate regarding the protection claims of the appellant[s’] uncle without itself evaluating the uncle’s claims”. Clearly enough, the focus of this ground of appeal was accordingly the extent to which the Authority was obliged to, and the extent to which it did, deal with the claims of the appellants’ uncle in the course of assessing their applications. In the appellants’ written submissions, the Authority’s error was put as follows:

The [Authority] merely noted that the uncle was not found by the delegate to be a person to whom Australia owed protection, rather than properly evaluating the claims about the uncle, by obtaining the material before the delegate regarding the uncle, including in the form of the interview between the department.

59    The natural question that follows from this assertion is why the Authority should be required to consider de novo the claims made by the appellants’ uncle. In connection with this question, it was said in the appellants’ written submissions, and the oral submissions of their Counsel at the hearing, that:

(a)    during the appellants’ SHEV interview, their representative “made submissions to the effect that they relied on the claims by their uncle despite not knowing what the uncle had said”, such that they “expressly relied on the content of their uncle’s claims as put to the Department as a central factual basis of their own claims”;

(b)    in order to carry out its review within jurisdiction, the Authority “had to consider what the uncle’s evidence and claims were, so that it could evaluate those factual matters for itself”;

(c)    the appellants’ case was not that they were dependents of their uncle, such that if his protection claim was made out so was theirs, but instead that “young Tamil males, being people who are … posing the likely threat to the state in the future are the ones that are going to be targeted, because of known association with the LTTE through their uncle, whether or not the uncle will himself be targeted in the future”;

(d)    the delegate had made his decision in the appellants’ case on the basis of evidence that he had considered in relation to the uncle’s case — that is, he had the uncle’s file before him — such that, when the Authority went to “start again” and review the delegate’s decision in respect of the appellants, it was required to consider that evidence; and

(e)    there needed to be de novo review of the claim that the appellants’ uncle was connected with the LTTE because that was part of the appellants’ claim.

60    In all of this, it is important not to lose sight of the fact that the ultimate issue here, as stated by Counsel for the appellants, was “whether the Authority has made its own review or whether it has relied only on the decision of the delegate”. This issue arises from the uncontroversial proposition that the Authority, when conducting its review, is not concerned with the correction of error on the part of the delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 226 [17] (Plaintiff M174/2016). As explained above, the appellants submitted that the Authority did not undertake an assessment of the protection claims of the appellants’ uncle (as, they say, it ought to have), but instead merely noted that the delegate, being the same person who had determined the appellants’ applications, had found the uncle not to be a person to whom Australia owed protection obligations. This finding was, according to the appellants, not an instance of true de novo review but merely the Authority’s assessment that the delegate had drawn a conclusion that it was prepared to accept as correct.

61    Somewhat unhelpfully, the appellants’ submissions on this ground of appeal tended at times to blend with their submissions on the third ground of appeal, which is addressed below. Given the manner in which the grounds were framed, their conflation in this way was inevitable. Lying beneath both grounds was the same fundamental question: what material was before the delegate in respect of the appellants’ application? The third ground required this question to be answered so that it could then be asked, for the purposes of s 473CB of the Act, whether the material was conveyed properly by the Secretary to the Authority. The first ground, meanwhile, required this question to be answered in order to define the scope of the de novo review to be conducted by the Authority — in particular, whether it encompassed the appellants’ uncle’s claims.

62    Acknowledging as much, the first ground of appeal can be addressed in two parts. Initially, it is necessary to identify the scope of the de novo review to be conducted by the Authority and determine, in that connection, the extent to which it was required to consider the claims made by the appellants’ uncle. It can then be determined whether or not the Authority did, in fact, consider the claim to the requisite extent.

To what extent was the Authority required to consider the uncle’s claims?

63    At the outset, it should be noted that the appellants did not refer the Court to any case in which it had been found that the Authority was required to review de novo claims for protection made by a person other than the applicant on account of the fact that the applicant’s claims, while not made in their capacity as a dependent of the other person (or otherwise derivative in nature), were asserted to be in some way contingent on the other person’s claims. It therefore seems to be necessary to approach this point from first principles, beginning with a brief summary of the relevant statutory scheme.

64    The Authority’s review in this case was a “fast track review”, conducted pursuant to Pt 7AA of the Act. Pursuant to s 473CA, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. It is expressly recognised in s 473FA(1) that the Authority is to conduct a “limited” form of review that is “efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. Specific material is provided to the Authority for this purpose, as set out in s 473CB, and its ability to obtain further material is restricted. As explained by the Full Court in EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 (EVS17) at 306 – 307 [25]:

Division 3 of Pt 7AA of the Act concerns the conduct of the review. It, together with s 473GA and s 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA of the Act. The review is to be undertaken on the papers. That is, by considering the review material provided to the Authority pursuant to s 473CB without accepting or requesting new information and without interviewing the applicant: s 473DB(1) of the Act.

65    In the same case, their Honours went on to state, to similar effect, at 308 [33] – [34]:

[33]     The intent of Pt 7AA is to provide an efficient, but fair, process of review in accordance with the terms of the Act … The Authority is expressly required to pursue that objective by providing a “mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3”: s 473BA. Division 3 sets out the way in which the Authority is to conduct the review. It expressly confines the material to which the Authority may have regard in undertaking its review to the material provided by the Secretary under s 473CB and, except in the limited circumstances set out in Subdiv C of Div 3, without accepting or requesting new information or interviewing the applicant. Further, in undertaking its review, the Authority is not concerned with the correction of error on the part of the Minister or delegate but undertakes a de novo consideration of the merits of the decision referred to it. It is required to consider the application afresh and determine for itself whether the criteria for a protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17].

[34]     That there be a fair review, free of bias in which the Authority considers the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA of the Act, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance by the Secretary with his or her obligations under s 473CB(1), and in particular, s 473CB(1)(b) of the Act, such that the Authority has all of the material before it that was provided by the applicant to the delegate.

66    Accordingly, the Authority’s expedited review under Pt 7AA has well-defined boundaries. Those boundaries are set by the material provided to the Authority under s 473CB, given that the review is to be undertake principally on the papers. That section states relevantly as follows:

473CB Material to be provided to Immigration Assessment Authority

(1)     The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)     a statement that:

(i)     sets out the findings of fact made by the person who made the decision; and

(ii)     refers to the evidence on which those findings were based; and

(iii)     gives the reasons for the decision;

(b)     material provided by the referred applicant to the person making the decision before the decision was made;

(c)     any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

…

(2)     The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

67    The rationale underlying this provision was explained by the joint majority in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at 446 [8]:

The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

68    The material before the delegate therefore provides the foundational subject matter of the Authority’s review, albeit that it can be supplemented by the Secretary pursuant to s 473CB(1)(c) and by the Authority pursuant to ss 473DC – 473DF. As the terms of s 473CB(1)(a) suggest, the material before the delegate becomes evidence, on the basis of which findings of fact are made and reasons are given.

69    As is apparent from this summary of the statutory scheme, the material before the delegate plays a critical role in defining the scope of the Authority’s review. It is accordingly important to begin by asking the fundamental question described above: what material was before the delegate in respect of the appellants’ application? More specifically, it might be asked whether the claims made by the appellants’ uncle were before the delegate in their entirety — that is, whether the appellants could effectively incorporate by reference into their own applications, and place reliance on, the claims of another person. If the uncle’s claims were incorporated in this way, such that they were before the delegate in their entirety, it could arguably be said that the Authority was required to consider the claims de novo in the course of its review.

70    The appellants’ submissions, as summarised above, responded to some extent to these questions.

71    First, it was contended that their representative at the SHEV interview had made submissions to the effect that “they relied on claims by their uncle despite not knowing what the uncle had said”. Reference was made, in this connection, to the passage from the transcript of that interview as set out earlier in these reasons. It was effectively contended that, by their representative’s comments, they had expressly relied on the content of their uncle’s claims, as he had put to the Department in his own application, as a “central factual basis” of their own applications. It followed, in the appellants’ submissions, that the Authority was required to consider the uncle’s evidence and claims, and to evaluate those factual matters de novo for itself.

72    Secondly, they contended that the delegate had made his decision in the appellants’ case on the basis of evidence that he had considered in relation to the uncle’s case — that is, he had the uncle’s file before him. This contention seemed to be based on the fact that the delegate in this case was responsible for considering both the appellants’ claim for protection and their uncle’s claim for protection. Again, it was said to follow that the Authority was required to consider de novo the uncle’s evidence and claims.

73    Each of these contentions must be rejected. Whilst it can be accepted that the outcome of their uncle’s claims was relevant to the appellants’ applications, it was not the case that the uncle’s claims formed part of those applications. In the course of determining the applications, the delegate was not required to (and did not) consider the evidence on which their uncle relied and to make a decision about their uncle’s claims. So much is apparent from what was said by the delegate in his decision in respect of their applications, as follows:

•    The applicants are reliant upon the uncle’s claims for protection and had no choice in coming to Australia. being hustled into making an exit from Sri Lanka by their uncle unexpectedly one day after school.

•    The applicants claimed that they did not know of their uncle’s involvement with the LTTE but only came to hear of it in the course of the interviews they had in Australia, and now they are afraid of being harmed as a result of their association to him.

•    The applicants fear harm from the authorities in Sri Lanka owing to their illegal departure and fears they will be put through harmful detention and questioning about their uncle and perceived as being pro LTTE.

…

The applicants were 14 years old at the time they left Sri Lanka and had little knowledge of why they left. They had no fears for their own safety so it is considered that they are imputed to have the fears of their Uncle who planned their asylum seeking journey.

…

I did not accept that their Uncle has a well-founded fear of persecution for all the reasons he claimed. It follows that I do not accept that the applicants have a well-founded fear of persecution insofar as it relates to their association to their Uncle.

…

In relation to the claim that they could be imputed with a connection to the LTTE though their Uncle, I did not find their Uncle was at risk of harm as a result of having a LTTE profile to be of interest to the Sri Lankan authorities for any other reason. It follows that the applicants are even further removed from this possibility and are therefore not considered to be at a resulting risk of harm.

74    Quite clearly, the delegate considered the uncle’s claims to be relevant, but did not see them as having been incorporated into the appellants’ applications. Whilst it happened to be the case that he was also the person responsible for deciding the uncle’s separate application, he did not set out or reconsider any of the evidence that was before him in connection with that separate application. Instead, he made what were effectively findings of fact that the uncle did not have a well-founded fear of persecution and was not at risk of harm as a result of having an LTTE profile, and cited as evidence in support of those findings the fact that he had drawn those conclusions in the context of the uncle’s separate application.

75    Practically speaking, this must be the correct approach. As identified above, the appellants’ contention was not that they were their uncle’s dependents, or that they were bringing a claim for protection that was merely derived from his claim; rather, it was that they would be targeted because they were young Tamil males who could be imputed with an LTTE association through their uncle. The connection between their uncle and the LTTE that was said to give rise to this association was asserted but not actually demonstrated before the delegate in the context of their applications, as the submissions of their representative at the SHEV interview make clear. If this sufficed to require the delegate to do anything more than identify as evidence the conclusions that had previously been drawn in respect of the uncle’s separate protection claims, then the SHEV application process would risk becoming administratively unworkable. One might envisage a scenario in which the appellants, instead of contending that they would be imputed with an LTTE connection because of their uncle, had contended that they would be imputed with that connection because of any of several family members with whom they had travelled to Australia and claimed protection. On the approach that they have promoted in the context of this appeal, the delegate would have been required to undertake a full review of all of the evidence put forward in connection with the separate protection claims of all of those family members merely for the purpose of deciding the appellants’ applications. That cannot be the way in which the decision-making process was intended to operate.

76    It follows that the material before the delegate on the appellants’ applications cannot properly be said to have included the whole of the uncle’s claims and the evidence underlying them. Those claims were not incorporated by reference into the appellants’ applications. At most, the submissions made by the appellants’ representative at the SHEV interview served to emphasise the relevance of the uncle’s claims to their case. It sufficed for the delegate to resolve that aspect of the case by relying upon evidence that he had previously drawn certain conclusions in respect of the uncle’s claims. There was no need for him to, and he appropriately did not, descend into the specific documents and information gathered in the context of the uncle’s application. Contrary to the appellants’ submission, it does not appear that the delegate even had the uncle’s file before him on their application. Although he may have had some recollection of the material in that file, having reviewed it in the course of making a decision as to the uncle’s application, the mere fact that he was the delegate determining both the uncle’s and the appellants’ applications cannot permit it to be held, absent any further indication, that the material before him in the context of the latter applications included all of what was before him on the former application.

77    As explained above, when material is conveyed by the Secretary to the Authority under s 473CB, a distinction is drawn between the delegate’s findings of fact and the evidence on which those findings were based. The relevant findings of fact in this case were that the appellants’ uncle did not have a well-founded fear of persecution for all the reasons he claimed and was not at risk of harm as a result of having an LTTE profile. The evidence upon which those findings were based was identified explicitly in the delegate’s decision: it was that he had drawn the same conclusions in the context of the uncle’s application. The evidence did not extend to the whole of the uncle’s file. It follows that, when the Authority set out to review de novo the delegate’s decision in respect of the appellants’ SHEV applications, it had to review the delegate’s findings of fact by resort to (inter alia) evidence that he had previously drawn certain conclusions in respect of the uncle’s application. That was the extent to which the Authority was required to consider the uncle’s claims.

Did the Authority consider the uncle’s claims to the requisite extent?

78    This question requires a more detailed analysis of the Authority’s decision. However, as the ensuing reasons reveal, the Authority plainly did consider the uncle’s claims to the requisite extent. Indeed, it went substantially further than the response to the previous question suggests that it needed to.

79    At [10] of its decision, the Authority observed that the delegate had noted in his decision that he had not accepted that the appellants’ uncle had a well-founded fear of persecution because of any association with the LTTE. The delegate, therefore, did not accept that the appellants had a well-founded fear of persecution because of their association with him.

80    The Authority then considered the available material, including the 2017 DFAT Report. It described the content of the appellants’ submissions as to that report, especially their disagreement with the suggestion in it that the political environment in Sri Lanka had significantly changed, discrimination against Tamils had decreased, and the security and human rights situation had improved (at [15]).

81    Thereafter, the Authority considered (at [22] – [28]) whether the appellants had a fear of harm based on their association with their uncle.

82    In doing so, it observed (at [22]) that they had only learned once they were in Australia that their uncle had allegedly been involved with the LTTE. It noted that they were aware of only a few details as to either his claimed involvement with the LTTE or any resulting problems. It also noted that the appellants had stated merely that their uncle was not a fighter, but had associations with people involved with the LTTE and did some “low level” work for the LTTE involving the transporting of vehicles.

83    The Authority then addressed (at [24]) the 2012 UN High Commission for Refugees “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” in relation to the risks to Sri Lankans who might be regarded as having some association with the LTTE, though it noted that those guidelines were quite dated.

84    It then observed (at [26]) that the appellants stated that their uncle was not a combatant for the LTTE, which presently appears to be uncontroversial. It also found that, given that they had only lived in Colombo (with their uncle), and never in an area under LTTE control, it was not satisfied that their uncle had any role in LTTE civilian administration. The appellants had not suggested that their uncle was involved in fundraising or had other links with the Tamil diaspora. The Authority concluded that, even if he was accepted to have been involved in the transportation of vehicles, then this was still, on the appellants’ own account, only a “low level” involvement. Any such involvement must have ceased by 2007 when he went to work in Saudi Arabia for a period. The Authority then concluded that there was no suggestion that he came under scrutiny during the immigration procedures to which he must have been subject when he returned to Sri Lanka. There was also an absence of credible evidence to support the appellants’ assertion that their uncle was unable to stay at home for any length of time because of his alleged LTTE connections. Given that the appellants lived with their uncle, they could not have been altogether unaware of any visits from security authorities, had such visits been happening. Nor did the Authority accept that they would have been oblivious to any periods of arrest or imprisonment, had they accounted for their uncle’s absences. It rejected the proposition that a person involved in low level transportation of vehicles for the LTTE up to 2007 would have been of such interest to the authorities that he would have been forced to leave Sri Lanka in 2012, three years after the end of the civil war, in order to avoid discovery or investigation. Had those investigations been ongoing, they must necessarily have been apparent to close family members who resided in the same place as the person under suspicion.

85    It is only in the last sentence of [26] that recognition is given to the delegate’s finding about the uncle. The Authority there observed:

I also give weight to the fact that the applicants’ uncle was found by the delegate not to be a person to whom Australia owes protection obligations because of actual or perceived links to the LTTE.

86    The pellucid effect of the Authority’s reasons and conclusions is that it did not accept that the uncle was involved with the LTTE to the extent suggested by the appellants. The asserted links between him and the LTTE were dismantled on several logical grounds that were identified from within the appellants’ own evidence. It was only after engaging in this careful analysis that the Authority, additionally, gave weight to the delegate’s separate decision that the uncle was not owed protection obligations by reason of any affiliation that he had with the LTTE. In doing so, it did not purport to review the delegate’s decision for error. Instead, it simply made the same finding of fact that the delegate had made in the context of the appellants’ applications by relying on (amongst other things) the same evidence — namely, that the delegate had concluded previously that the uncle was not owed protection obligations. In this way, the Authority did conduct a de novo review of the appellants’ claims that their uncle had some relevant connection with the LTTE.

87    It is important to observe that the Authority proceeded (at [27]) to make its determination on the assumption that the appellants’ uncle did have the asserted low-level involvement with the LTTE. Even having adopted that assumption, it was not satisfied that such involvement would result in any adverse impact on the appellants. It further concluded that they would not be imputed to hold pro-LTTE opinions or be suspected of ever having been involved with the LTTE themselves by reason of that assumed connection, given their young age during the war and the fact that they were living and attending school in Colombo at that time. On the stated assumption, it was not satisfied that the authorities would be interested in the whereabouts of the appellants’ uncle and, consequently, it was not satisfied that they would be questioned about this. It concluded:

Even accepting the applicants’ claim at their highest I am not satisfied that a family connection to and dependence on a low level supporter of the LTTE would give rise to a real chance that they would face serious harm for this reason on return to Sri Lanka.

88    It is, with respect, plain that the Authority considered afresh the claim that the appellants’ uncle had some involvement with the LTTE. It did so based on the information provided to it and the allegations made on the appellants’ behalf. It even went so far as to draw its ultimate conclusion on this point on the assumption that their claims were made out.

89    It is not doubted that the Authority was obliged to read, identify, understand and evaluate the appellants’ representations. It did so in this case. Contrary to the appellants’ submissions, it did not merely adopt findings made by the delegate. The delegate had before him the fact that he had earlier rejected the uncle’s application. He made findings in reliance upon that fact, effectively utilising it as a piece of evidence. On review, the Authority had regard to that evidence as well and drew essentially the same conclusions.

90    The primary judge correctly held that the Authority did independently consider the issue as to whether the appellants’ relationship with their uncle was such that, by reason of the uncle’s alleged involvement with the LTTE, the appellants would have a well-founded fear of persecution. There is no error in the primary judge’s conclusion on this point. Although the appellants pointed out that the primary judge had added that the Authority’s decision was not irrational or illogical, and thereby introduced administrative law concepts that were foreign to the ground that they had raised before him, this does not undermine on the correctness of his Honour’s ultimate conclusion.

91    The real complaint in this matter is that, before the delegate, the appellants did not adduce greater evidence of their uncle’s claimed involvement in the LTTE. However, even if they had done so, there is no realistic prospect that a different decision could have been reached. The Authority determined the matter on the assumption that the appellants’ uncle did have a low-level connection with the LTTE, as the appellants have now asserted. It therefore took their claims at the highest that the evidence permitted, but concluded that they failed in any event.

92    It might be added, finally, that the very premise of this ground of appeal — that the Authority should review de novo claims made by a person other than the person the subject of the fast track reviewable decision before it — is somewhat peculiar. It was never fully explained by the appellants what consequence could be expected to follow if the Authority did consider the uncle’s claims and determined them differently to the delegate. The Authority would not have been referred the decision made in respect of the uncle under s 473CA of the Act, such that it could not properly affirm or remit the decision pursuant to s 473CC. In effect, it would merely be commenting on the correctness of a decision made by the delegate in the context of a separate application. That scenario is alien to the scheme of review under Pt 7AA.

93    It follows that the primary judge was correct to conclude that the Authority had undertaken the de novo review required of it. There is no merit in the first ground of appeal.

Ground 3 – the Secretary’s compliance with s 473CB of the Act

94    By the third ground of appeal, the appellants asserted that the Secretary breached s 473CB(1)(a) and (b) of the Act by not providing what they described as “requisite material” to the Authority. By their written submissions, they also alleged that there was a breach of s 473CB(1)(c). The Minister was content to respond to this additional allegation, even though it did not originate in the Notice of Appeal.

95    The relevant parts of s 473CB have been set out above in these reasons, and are repeated below where convenient. In EVS17, the Secretary’s failure to provide the Authority with the documents required by the section was found to vitiate any subsequent decision as being affected by jurisdictional error in circumstances where the provision of those documents could have resulted in a different decision being reached. The provision of the relevant information in accordance with the section is, in this way, a precondition to the Authority’s exercise of its power to review the referred fast track reviewable decision: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 85 – 86 [14] (CNY17).

96    It is useful to proceed individually through each of the paragraphs of s 473CB(1) that the appellants have alleged were breached in this case. For the reasons that follow, this ground of appeal also fails.

Section 473CB(1)(a)

97    Section 473CB(1)(a) requires the Secretary to give to the Authority a statement that:

(i)     sets out the findings of fact made by the person who made the decision; and

(ii)     refers to the evidence on which those findings were based; and

(iii)     gives the reasons for the decision;

98    The appellants submitted that the Secretary failed to comply with s 473CB(1)(a)(ii) because it omitted to “give the IAA a statement that referred to the delegate’s interview with the uncle or any evidence from the uncle’s protection visa file”. As mentioned previously, the same delegate who determined the appellants’ applications had interviewed their uncle and considered and rejected his separate application for a protection visa. Hence, it was contended that the findings made by the delegate, in the context of the appellants’ applications, as to the conclusion that he had previously reached in respect of the uncle’s application were “based on the delegate’s interview with the appellants’ uncle and other material in the uncle’s protection visa file”. Support for that contention was recruited from part of the delegate’s decision on the appellants’ application, where it was said:

I did not accept that their Uncle has a well-founded fear of persecution for all the reasons he claimed. It follows that I do not accept that the applicants have a well-founded fear of persecution insofar as it relates to their association to their Uncle.

99    These submissions can be rejected for reasons already set out above in respect of the first ground of appeal. The flaw in the appellants’ case can be identified by reference to the passage from the delegate’s decision that they quoted: the appellants have treated the first sentence as a finding of fact, whereas it is properly to be regarded as evidence upon which the finding of fact in the next sentence was based. As explained previously, the delegate, when deciding the appellants applications, relied on his earlier findings in relation to their uncle as evidence. He did not, actually or purportedly, conduct a reconsideration of the uncle’s application, incorporating into the appellants’ applications all of the claims and evidence upon which their uncle had relied. It follows that the delegate’s reasons, which were given to the Authority, set out the evidence on which the relevant findings were made.

100    Section 473CB(1)(a)(ii) does not require the provision of a statement that refers to the evidence on which findings of fact could have been based, or all of the evidence that might objectively have been material. A similar approach has been taken in respect of the requirement under s 430(1)(c) and (d) for the Tribunal to prepare a written statement that sets out the findings on any material questions of fact and that refers to the evidence or any other material on which the findings of fact were based: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [68]; Minister for Immigration and Multicultural Affairs v Li (2000) 176 ALR 66, 75 [44]. Here, the evidence on which the delegate’s finding that the appellants’ uncle did not have a well-founded fear of persecution was based was clearly articulated in his decision. It included his own earlier conclusion, in a separate application, that the uncle did not have a well-founded fear of persecution by reason of his claimed connection to the LTTE. That evidence was supplied to the Authority within the delegate’s written decision.

101    There was no contravention of s 473CB(1)(a)(ii), and the primary judge was correct so to find.

Section 473CB(1)(b)

102    Section 473CB(1)(b) requires the Secretary to give to the Authority “material provided by the referred applicant to the person making the decision before the decision was made”. The “person making the decision” in this context was the delegate.

103    The appellants submitted that they had “constructively” provided the material relating to their uncle’s claims to the delegate by their representative at the SHEV interview having requested that the delegate consider any claims arising from the uncle’s connections to the LTTE. It followed, they said, that the Secretary breached s 473CB(1)(b) by failing to provide that material to the Authority.

104    There was no contravention of s 473CB(1)(b) in this case.

105    First, the submissions of the appellants’ legal representative at the SHEV interview, as set out above, did not provide to the delegate, constructively or at all, the uncle’s claims or the materials relating to them. The submissions were general — essentially asserting that, if there was any connection between the uncle and the LTTE, then the appellants would be at risk. However, at the time, there was a lack of knowledge about the nature of the claims that the uncle had been advancing. There was no attempt to call in aid whatever matters and materials were relied upon by the uncle. Indeed, it would have been perilous for the appellants’ representative to do so given that she was unaware of the allegations that were actually being advanced in his separate application. At most, her statement could be taken as a claim that, if any connection was established between the uncle and the LTTE, then the appellants would be at risk if returned to Sri Lanka. That claim was ineffectual because the Authority fully considered, but rejected, the claimed connection between the appellants’ uncle and the LTTE.

106    Secondly, an acceptance of the appellants’ submission would extend the meaning of the word “material” in s 473CB(1)(b) beyond that which it would bear in ordinary language. The relevant “material” is, generally speaking, the documentation that the delegate had before him when he made the original decision: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 (2021) 285 FCR 381, 397 – 398 [54] and the cases there cited. By their submission, the appellants seek to extend that concept to material that might have been considered if the delegate had undertaken further investigations of his own into a matter that was merely brought to his attention. Section 473CB(1)(b) could not have a workable operation in practice if “material” included documents or information that an applicant merely cited, as this would effectively require the Secretary to acquire from places unknown potentially large quantities of items that were not actually produced or relied upon by the delegate.

107    It is also difficult to say that the appellants have truly “provided” material to the delegate merely by asserting that certain claims exist in a separate application, without actually producing any documents or tangible information bearing upon those claims. Their submission is inconsistent with the ordinary meaning of the word “provide”, being “to furnish or supply”: BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 [71] – [72].

108    The purpose of s 473CB(1)(b) is to put the Authority in the same position as the delegate for the purpose of facilitating a de novo review. That purpose is not achieved if the Secretary is required to give to the Authority additional material that can be seen, on the face of the delegate’s reasons, not to have been considered in the course of the delegate’s decision-making process. There was no contravention of s 473CB(1)(b) in this case.

Section 473CB(1)(c)

109    Section 473CB(1)(c) requires the Secretary to give to the Authority “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.

110    The material that falls within the scope of this section is that which the Secretary considers to be capable, directly or indirectly, of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding, in the conduct of its review of the referred decision: CNY17 at 83 – 84 [6]; ABT17 at 446 [6]. An unreasonable failure or refusal to identify documents that might be relevant may constitute a breach of s 473CB(1)(c): EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 [41(4)], approved in CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367, 375 – 376 [28], 388 [80] (CQR17). In fulfilment of the requirements of this section, the Secretary is required to take reasonable steps to identify potentially relevant documents: AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82, 95 [70].

111    In ascertaining whether the Authority’s decision that a document was irrelevant was unreasonable, the question to be asked is whether there is an “evident and intelligible justification for the conclusion that the document was not relevant to the review”: CQR17 at 380 [39]. Necessarily, if there does exist a reasonable justification for concluding that the documents were irrelevant to the review, no error can be made out, even if the Court might have reached a different conclusion: CQR17 at 396 [109].

112    In the present case, the appellants submitted that the Secretary erred by failing to give material that was in its possession or control and which it considered to be relevant to the review in accordance with s 473CB(1)(c). They contended as follows:

From the IAA’s reasons, a compelling inference can be drawn that the IAA did not have any information about the claims the Uncle himself made or the material in the Uncle’s file, whereas that information was before the delegate making the primary decision.

113    There can be no doubt that the appellants are required to discharge the onus of establishing that there was no evident and intelligible justification for the Secretary’s failure to provide the uncle’s file to the Authority.

114    Acknowledging that the appellants bore the onus in this way, it is relevant to point out that no subpoena was issued to produce the uncle’s file — the consequence being that it was not before the Court and its contents are not presently known. The material in it may have been relevant to the issues in the appellants’ applications. However, conceivably, the material may have done nothing more than establish that which the Authority was prepared to assume in the appellants’ favour in any event. In the latter case its relevance is difficult to detect. As was identified in Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379 (CPA16) at 388 – 389 [32(4), (6)], the content of a document that was not given to the Authority is relevant and admissible, and it is appropriate for the Court to have regard to the Authority’s decision in the light of the document’s contents. That is particularly important, given that the onus of proving that the failure to give a document or information was material lies on the applicant for judicial review: CPA16 at 388 [32(5)].

115    The only alleged relevance of the uncle’s file was that it may have included material that supported the appellants’ claim that they had a well-founded fear of persecution or would suffer harm because of their relationship with him given his connections to the LTTE. However, without the file, or knowledge of its contents, this Court must treat that allegation of relevance as essentially speculative. It may well be that the contents of the file would disadvantage the appellants’ case — for instance, if the claims advanced by the uncle were inconsistent with the appellants’ understanding. Indeed, the material contained in the file evidently did not assist the uncle in his application, which proved unsuccessful. It is also conceivable that the information in the uncle’s file may have contained nothing more than the claims that the appellants already advanced about the uncle’s involvement with the LTTE. There is, quite simply, no indication one way or the other. In such circumstances, it is difficult to conclude that there could not have been any evident and intelligible justification for the Secretary’s apparent view that the file was irrelevant to the review.

116    In this case, the appellants made their own applications for SHEVs with the assistance of their legal representatives. In doing so, they advanced grounds that, in part, relied upon assertions as to their uncle’s connection with the LTTE. That was said to include his association with “people involved in the LTTE”, and the fact that he did some low-level work for the LTTE involving the transporting of vehicles. There is nothing to suggest that the material in the uncle’s file might contain anything that would advance or hinder those claims.

117    Further, the appellants’ applications did not include the material from the uncle’s file and, despite the submissions considered above, there is nothing to suggest that the appellants sought to incorporate the material relied upon by the uncle into their claims. As is known, the delegate did not see the need to consider the material from the uncle’s file, but instead found that the uncle did not satisfy the requirements for a protection visa — citing as evidence the fact that he had drawn that conclusion already in the context of the uncle’s separate application. In such circumstances, any relevance that the material in the uncle’s file might have had is substantially diminished.

118    A more significant difficulty with the appellants’ reliance on the alleged failure of the Secretary to give to the Authority the material in the uncle’s file is that, in order for any such error to amount to a jurisdictional error, it must be established that the non-compliance with s 473CB(1)(c) was material: EVS17 at 308 [35]; CQR17 at 381 [43], 400 [130]; CPA16 at 388 [32(2)]; DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 294 FCR 1, 11 [44].

119    In EVS17, the Full Court was said to have lowered the bar for determining what might be a material error in the Secretary’s fulfilment of s 473CB(1). The Court said at 311 [42]:

Given the statutory purpose of a fair hearing, a lower threshold of materiality is called for. That is, one that considers whether the documents that were not provided by the Secretary could have resulted in the making of a different decision: see Hossain at [31]. In other words, there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Pt 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review. Whether that is so should be considered by reference to an applicant’s claims and the Authority’s reasons.

120    In the absence of the uncle’s file, the way in which it may have affected the decision under consideration is entirely speculative, and that cannot suffice to establish an error: CPA16 at 388 – 389 [32(6)]. However, assuming the existence of an error for the purpose of testing its materiality, the Court must ask whether the alleged non-compliance with s 473CB(1)(c) could have operated to deprive the appellants of the possibility of a successful outcome in their claim that they would be imputed with an LTTE connection by reason of their relationship with their uncle. On the known material, the answer to that question must surely be in the negative. The uncle’s application was rejected on the basis that he was not owed protection obligations. It follows that the appellants could not be owed protection obligations merely because they were associated with their uncle. Necessarily, as the material was insufficient to establish the uncle’s claims for protection, it must be insufficient to establish that persons less connected to the LTTE would be owed protection obligations.

121    Further, as identified above, the Authority concluded that, even if it was assumed that the uncle had a low-level involvement with the LTTE and transported vehicles for it, as the appellants alleged, their claims would nevertheless fail because the uncle’s involvement with the LTTE would not result in any adverse impact on them. Due to their young age during the war years and the fact that they were living and attending school in Colombo throughout that time, the Authority was not satisfied that they would be imputed with pro-LTTE opinions by reason of their association with their uncle. In addition, they would not be suspected of ever having been involved with the LTTE merely by reason of their connection with their uncle. Later in its reasons (at [34] – [36]), the Authority, after considering the country information before it, concluded that even if the uncle’s association with the LTTE was established then there was no real chance that they would be subjected to harm on return to Sri Lanka. Accordingly, even if the uncle’s file had been made available, such that the appellants’ claims as to his involvement with the LTTE were sustained, the Authority would have remained unsatisfied that they were owed protection obligations.

122    The consequence is that, even if there was non-compliance with s 473CB(1)(c) on the part of the Secretary, there could be no jurisdictional error because there was no realistic possibility that compliance could have led to a different outcome in the Authority’s review.

123    The appellants further submitted that the Secretary had unreasonably failed to make an appropriate search for, or unreasonably failed to provide, the uncle’s file because the delegate had based his decision to deny the appellants’ applications for SHEVs on the material in that file. As previously indicated, that was not the case. The decision was based, in part, only on the conclusion reached in relation to the uncle’s application, which was effectively treated as evidence. That conclusion was taken and weighed along with all of the other material advanced on behalf of the appellants in relation to the claim that their uncle had some association with the LTTE.

124    The appellants have failed to show that the primary judge was incorrect to find that there was no material error in the manner in which the Authority determined the appellants’ applications on the materials given or not given to it. The third ground of appeal cannot succeed.

Conclusion

125    None of the grounds advanced on appeal has been established. For the reasons identified above, the primary judge was correct to dismiss the application for review of the Authority’s decision. The appeal should be dismissed.

126    There is no reason why the ordinary rule as to costs should not apply. The appellant should pay the first respondent’s costs of the appeal.

Associate:    

Dated:    19 December 2023