AJG18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 853
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJG18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 853
File number(s): MLG 199 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 6 June 2025 Catchwords: MIGRATION - application for judicial review of a decision of the (then) Immigration Assessment Authority – whether the Authority failed to consider relevant claims or evidence – misinterpreted or misapplied s.473DD and/or s.473DC of the Migration Act 1958 (Cth) in the manner contended – whether the Authority’s decision was attended by legal unreasonableness – where Applicant’s evidence before delegate included an expression of disclaimer – jurisdictional error not established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss. 36, 65, 473, 474, 476 Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
AUS17 vMinister for Immigration and Border Protection (2020) 269 CLR 494
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345
Craig v South Australia (1995) 184 CLR 163
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DKN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 560
ELC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 579
ESQ17 v Minister for Immigration and Border Protection [2019] FCA 826
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 297 ALR 225
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 12 August 2024 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Ambi Associates Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 199 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJG18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
6 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Citizenship.
2.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
3.The application as amended on 3 July 2024 be dismissed.
4.The Applicant pay the costs of the First Respondent fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka who sought protection of Australia primarily on the basis of claims to fear harm on return because of suspected links to and involvement with militant groups and because he is an asylum-seeker who fled Sri Lanka illegally.
The Applicant now seeks judicial review of a tribunal decision to affirm an earlier decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed.
CONTEXT
The Applicant is of Roman Catholic faith, Tamil ethnicity and a citizen of Sri Lanka.
On 18 October 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 22 November 2012, the Department was provided with documents including a letter from International Red Cross and a letter signed by a Rev. Fr. Sugunenthiran Croos dated 2 November 2012.
There is a record of the Applicant’s irregular maritime arrival entry interview dated 5 January 2013, completed with the assistance of a Tamil interpreter (arrival interview). Relevant to the grounds of judicial review, there the Applicant is recorded as having said that he was not a member of a particular social or religious group, had not served with a police, security or intelligence organisation, that he and his family members did not have any political involvement and were not involved in any activities or protests against the government. At Part C, the record also reflects the following:
Reason to leave
1. Why did you leave your country of nationality (country of residence)?
The reason I came here is every time they came the capture me. The Army. The believe I was part of the Tigers. I was not part of the Tigers. The first time they took me one time for 3 months and the second time I was taken for 3 days and left the country 25/7/2009 they released me. Since then I have received threats over the phone and they came looking for me and giving me trouble. This was July 2012.
[…]
Police / Security / Intelligence Organisations
6.(a) Were you ever arrested or detained by the policy or security organisations?
Yes.
During the Tamil elections I was arrested and held for 6 days because the believed I was announcing the election in Trincomalee
6.(b) Did the police and security or intelligence organisations impact your daily life in your home country?
Yes.
The army accused me of being part of the LTTE
[…]
Reasons Not to Return to Country of Nationality
18. What do you think will happen to you if you return to your country of nationality (residence)?
They wont leave us with our lives
(sic.)
On 9 and 10 January 2013, more documents were provided to the Department including a letter signed by a Rt. Rev. Dr Joseph Kingsley Swampillai dated 12 September 2012, a diagnosis card and a character certificate.
On 7 January 2016, the statutory bar was lifted and the Applicant was invited to apply for a temporary protection (subclass 785) visa (TPV) or a safe haven enterprise (subclass 790) visa (SHEV) under a then newly introduced “fast track assessment process”. That invitation explained that an applicant must answer every question on the application form and give complete and truthful information to the Department; further, that it were the responsibility of an applicant to explain clearly why they were seeking protection in Australia and give details of their protection claim(s) where possible and, if unable to give evidence, to provide an explanation.
In November 2016, the Applicant applied for a safe haven enterprise (subclass 790) visa (the protection visa). The application was prepared with the assistance of a Tamil language interpreter and a migration agent who did not continue to represent the Applicant after lodgement. It attached a statutory declaration of the Applicant dated 15 November 2016 which was referred to throughout the application form in response to the required information (the first statutory declaration) and more documents (some of which had previously been provided to the department in the emails of 9 and 10 January 2013). Relevant to the grounds of review, the first statutory declaration commenced with a statement that it contained a summary of the Applicant’s claims and that he was “happy” to provide further detail at interview.
On 24 March 2017, the Applicant was requested to attend an interview with a delegate of the First Respondent on 13 April 2017 (SHEV interview or delegate’s interview).
On 15 June 2017, a delegate of the First Respondent refused to grant the protection visa. The delegate’s decision noted that the Applicant had provided a range of documents issued from a variety of organisations to verify his identity and claims. The delegate summarised the Applicant’s claims for protection, including those provided at interview, and noted the Applicant’s correction of a response at entry interview regarding a claim to have been detained in 2012 which the Applicant believed may have been misunderstood or a translation error.
On 5 July 2017, a representative on behalf of the Applicant wrote to the Authority and requested access to documents under freedom of information legislation (specifically, all information considered by the delegate in relation to the Applicant’s protection visa application including any recording of interview and transcript. By email included in the court book, it is apparent that the Authority released the following documents administratively and on same day: protection visa application; DIBP decision record and notification; arrival interview recording as two separate audio files (mp3).
On 14 July 2017, in the course of an application for review of the delegate’s decision, a representative on behalf of the Applicant provided the Immigration Assessment Authority (as it then was) (Authority) with a written submission dated 12 July 2017 (submission of the Applicant’s representative), a statutory declaration of the Applicant (second statutory declaration) and an untranslated notice document with a notation that the representative was awaiting a translation and would forward it to the Authority once received (untranslated notice). There is no record of a translated version of the untranslated notice being provided to the Authority prior to its decision some 5 months later.
On 5 January 2018, the Authority affirmed the delegate’s decision on review (Authority’s decision).
The Authority’s decision
The Authority’s decision commenced by identifying the materials that the decision maker had considered and not considered in the conduct of the review: at [3]- [11]. Relevant to the grounds of the present application (as amended), the Authority described that it had regard to:
(a)The material given to the Authority by the Department under s.473CB of the Migration Act 1958 (Cth) (Act); and
(b)The submission of the Applicant’s representative and second statutory declaration provided to the Authority on 14 July 2017 which were not before the delegate, except to the extent of certain aspects detailed at [5]-[11] and traversed later in these reasons as relevant to the amended grounds.
The Applicant’s claims for protection were then summarised: at [12].
The Authority made a series of findings on the information before it: at [13] – [28].
In embarking on its refugee assessment, the Authority summarised the aspects of the Applicant’s claims which were accepted or rejected as follows:
[31] I accept the applicant was born in Muthu, where he lived until about six years old moving to a refugee camp after the family home was burned down during the conflict, eventually settling at St Joseph’s Refugee Camp in Trincomalee. I accept his father was a fisherman and was detained by the authorities from 1988 to 1991 on suspicion of LTTE-involvement. I accept the applicant may have been questioned by authorities on suspicion of LTTE-involvement in 2003 and that from 2004 until 2007 he was working in Dubai. I accept he was detained and mistreated by the CID, along with others, on 15 April 2009 for three months on suspicion of LTTE-involvement and hiding weapons as many other young Tamil males were in the environment of heightened security that pervaded the north and east of Sri Lanka immediately after the war had ended. I accept he was released with the assistance of a Reverend and had to report to authorities on his release until 2011 and subsequently travelled to Qatar where he worked for three months. I accept he may have been detained for three days by the police because of his involvement in an election rally in 2012 and was released without charge.
[32] However, I do not accept he was specifically targeted by authorities because of his father’s previous experience with authorities, his friend’s involvement with the LTTE or death in 2002 or his scarring. I do not accept that the CID frequently visited his home while he was in Dubai or Qatar, that he was arrested in 2007 on his return from Dubai or that he has ever hidden at his aunt’s place in Batticaloa because he feared for his safety or that he was of on-going interest to the authorities in connection with an adverse security profile after his release in 2009. Nor I do not accept the authorities looked for the applicant immediately after he left Sri Lanka or that they still regularly look for the applicant at his home.
The Authority considered the country information that was before it and expressly referred to a Department of Foreign Affairs and Trade report on Sri Lanka dated 24 January 2017 (DFAT Report) including reported information that, by 2017, the monitoring and harassment of Tamils in day-to-day life had significantly decreased (particularly in the north and east of Sri Lanka), was no longer state-sponsored and that members of the Tamil community had described a positive shift in the nature of interactions with authorities: at [33]. The Authority also considered those parts of the DFAT Report which reported that the Sri Lankan government remained sensitive to the potential re-emergence of the Liberation Tigers of Tamil Eelam (LTTE), referred to outdated references of categories of “at risk” persons and that more recent reports of abductions and torture in Sri Lanka were generally perpetrated by paramilitary groups where the victim was suspected of having some involvement in the resurgence of the LTTE or bringing Sri Lanka into disrepute because, for example, they were an ex-LTTE member, had undergone “rehabilitation” or had previously attended Tamil diaspora events, protests or election activities concerning Tamil rights: at [35].
However, and notwithstanding its acceptance that the Applicant may have attended an election rally in 2012 and been briefly detained by the police in connection with same, the Authority did not accept that the Applicant continued to be of any ongoing interest to the authorities because he was quickly released and not charged. The decision maker considered the evidence demonstrated there had been a lack of interest in the Applicant ever since: at [35]. The Authority applied its findings of the Applicant’s profile and available country information to conclude that there was no real chance that the Applicant would be detained, interrogated, tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin, political opinion, previous experiences, because his father was previously detained or because at that time he had lived in Australia for the past 5 years: at [36].
The Authority accepted that the Applicant left Sri Lanka illegally and may be identified as such on arrival, and considered the country information, namely the DFAT Report, about the likely treatment on arrival at the airport. The Authority concluded that the Applicant may face harm as a returning asylum seeker, in terms of a brief detention or fine, but found the treatment that the Applicant may experience on return as a consequence of his illegal departure did not amount to serious harm and was not discriminatory: at [38]-[43].
The Applicant was assessed as not meeting the requirements of the definition of “refugee” at s.5H(1) of the Migration Act 1958 (Cth) (the Act) and therefore did not satisfy s.36(2)(a): at [44].
The Authority conducted its complementary protection assessment at [45]-[49]. Noting that the same standard applied to its assessment of “real chance” and “real risk”, for the same reasons as expressed earlier in its reasons, the Authority accepted there was a “real risk” that the Applicant may be interviewed, charged for illegal departure, fined and briefly detained possibly in prison on his return but was not satisfied that such treatment would amount to “significant harm” as defined based on the country information before it and the evidence before it which was found not to support a conclusion that there is any intention by the Sri Lankan authorities to inflict severe pain or suffering, or to cause extreme humiliation: at [45] – [49].
APPLICATION BEFORE THE COURT
On 25 January 2018, the Applicant filed the originating application for judicial review of the Authority’s decision and a supporting affidavit sworn that same day.
On 21 February 2018, a response was filed on behalf of the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
On 14 November 2018, the First Respondent filed a court book.
Various procedural orders were then made.
On 20 June 2024, the Applicant lodged an amended application and a supplementary Court Book (both of which were not accepted for filing until 3 July 2024). The amended application identified 3 grounds of review (having abandoned the second ground) in the following terms:
1. The Second Respondent (“Authority”) fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
PARTICULARS
(a) In assessing the Applicant’s information:
(i) That in 2012 he campaigned for the TNA and was threatened by the TMVP;
(ii) that the CID visited the Applicant's home for about two years after he left for Dubai in 2004;
(iii) that the CID arrested and detained the Applicant on his return from Dubai in 2007;
(iv) That he was arrested and detained on his return from Qatar;
(v) That he was involved in an electoral campaign for the TNA in 2012, and was arrested, detained and released without charge. (CB 119, [19])
the Authority did not consider as required by law the Applicant's statement, at the beginning of his Statutory Declaration in support of his application to the First Respondent ("the Minister") for a Safe Haven Enterprise Visa ("the visa"), that "Please note that this is a summary of my claims and I am happy to provide further detail at my interview."
(CB 117, [l]; Cf. CB 258, [8]; CB 262-263, [19]-[20]; CB 265, [27])
(b) The Authority did not consider as required by law all the information relating to torture and other abuse of human rights in the “DFAT Country Information Report – Sri Lanka”, 24 January 2017. (BC 297-300, [33]-[40])
3. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
PARTICULARS
(a) By reason of the matters set out in Particular (a) to Ground 1, the Authority's failed to consider and review the matter as required by section 473DB(l) of the of the Migration Act 1958 ("the Act") in making its assessment of some potentially critical claims and information.
(b) The Authority erred in interpreting or applying section 473DC of the Act, in regarding the Applicant's information that he campaigned for the TNA and was threatened by the TMVP as "new information" within the meaning of sections 473DC and 473DD, when that information was properly the elaboration of claims he had already made, he had said that he was happy to elaborate them at the protection visa interview where he was unrepresented, and the explanation for the additional information being given after the delegate's decision was in the submission to the Authority, but the Authority accepted that he was not asked about these claims at that interview.
(CB 119, [19]; CB 246; CB 248-249, [2]-[8]; CB 258, [8])
(c) Further or in the alternative to Particular (b) to this Ground, the Authority erred in interpreting or applying 473DD(b)(ii) of the Act in not finding the claims about his involvement in an election campaign were "credible personal information".
(CB 119, [19]; CB 248-249, [2]-[8]; CB 258, [8])
(d) Further or in the alternative to Particular (c) to this Ground, the Authority erred in interpreting or applying 473DD(b)(ii) of the Act, in not finding the claims about his involvement in an election campaign were "credible personal information", affected and infected the Authority's finding that there were not exceptional circumstances under section 473DD(a) to justify considering that information.
(CB 119, [19]; CB 248-249, [2]-[8]; CB 258, [8])
(e) The Authority erred in not giving the Applicant an interview or otherwise seek new information under section 473DC of the Act, about the Applicant's information that:
(i) he campaigned for the TNA and was threatened by the TMVP;
(ii) that the CID visited the Applicant's home for about two years after he left for Dubai in 2004; and
(iii) that he was arrested and detained on return from Dubai,
(iv) That the CID visited the applicant's home looking for him while he was in Qatar or that he fled and was in hiding at his aunt's place in Batticaloa on his return.
(v) That he was arrested and detained on his return from Qatar;
(vi) That he was arrested and detained in connection with an election campaign in 2012; (CB 265-266, [27]-[28])
(vii) That the authorities of Sri Lanka had continued to seek him after he left in 2012. (CB 266, [28]);
This was an error of law especially when the Applicant was unrepresented at the interview for the visa, and when the Minister's delegate made no finding on questions (i), (ii) and (vii) above.
(CB 258, [8]; CB 262-263, [19]; CB 265-267, [26]-[28],[32])
4. The Authority fell into jurisdictional error in that it made findings without a logically probative basis or was otherwise legally unreasonable.
PARTICULARS
(a) By reason of the matters set out in Particular (a) to Ground 1, the Authority's assessment of some potentially critical claims and information was legally unreasonable.
(b) The Authority found that the Applicant has "significant scarring" from 1998 (CB 261, [16]), "may have been questioned by the CID on more than one occasion in 2003 on suspicion of LTTE involvement as many young Tamil males were at that time and that the applicant may have had young Tamil male friends who were also suspected of LTTE involvement", (CB 262, [18])
(c) The Authority found that the Applicant was "detained, mistreated and interrogated for a period of three months in 2009 on suspicion of hiding weapons and LTTE involvement", and that he was released on the intervention of the Catholic Bishop of the diocese, as attested in the Bishop's letter of 12 September 2012 and supported by the letter of another priest. (CB 61-62; CB 264, [22]-[23])
(d) The Authority found that "I am willing to accept that on his return he may have stayed with his aunt in Batticaloa." (CB 265, [26])
(e) Having made the findings set out in Particulars (b), (c) and (d) to this Ground, the Authority had no logically probative basis in finding:
(i) "I do not accept he was specifically targeted whether because of his scars, his father's previous experiences with authorities or because he had friend who were suspected LTTE members or that on his release he continued to be suspected of LTTE involvement." (CB 264-265, [24])
(ii) "I do not accept the applicant continued to be wanted by authorities after his release in 2009….I do not accept the CID visited the applicant's home looking for him while he was in Qatar or that he fled and was in hiding at his aunt's place in Batticaloa on his return. (CB 265, [26])
(iii) That he was arrested and detained in connection with an election campaign in 2012; (CB 265-266, [27)-(28])
(iv) That the authorities of Sri Lanka had continued to seek him after he left in 2012. (CB 266, [28]).
(v) "I find that there is not a real chance the applicant will be detained, interrogated, tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin, political opinion, previous experiences (including his detention in 2009 and 2012), because his father was previously detained or because he has lived in Australia for the past five years." (CB 268, [36])
(vi) …As I do not accept the applicant is of any ongoing interest to the authorities, I find that there is not a real chance the applicant will be detained, tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity or origins because he is a returning asylum seeker." (CB 268, [37], and see CB 268-270, [36-[43], [47]-[48])
(sic.)
On 20 June 2024, the Applicant filed an outline of submissions.
On 4 July 2024 and 22 July 2024 respectively, the First Respondent filed an outline of written submissions and a list of authorities.
The matter proceeded to final hearing before the Court as presently constituted on 12 August 2024. The Applicant and the First Respondent were both represented by Counsel.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial Grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act was arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commenced with a self-described “simplified outline” at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not at the time apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that was efficient, quick, free of bias and consistent with then Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it could consider new material and could invite a referred applicant to provide, or comment on, “new information”.
Division 3 of Part 7AA, which concerned the subject, “Conduct of review” was arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at ss.473DC and 473DD, concerned how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
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.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
It falls then to address the 3 grounds of review, as numbered on the amended application, but not in that order.
GROUNDS 1 AND 3
It is convenient to address these grounds together given the substantial overlap.
Respective contentions
By the first and third grounds of review, the Applicant claimed that the Authority fell into jurisdictional error by not considering relevant considerations including claims, integers of claims or material questions of fact or information and misapplying the law in respect of its power to consider and get “new information” pursuant to ss.473DD and 473DC of the Act.
Specifically, the Applicant submitted that, had the Authority considered the disclaimer to his first statutory declaration, then:
(a)The Authority may have reached a different conclusion in respect of his claim to have been involved in the 2012 election – either that it was not “new information” under s.473DC of the Act, or as having “exceptional circumstances” to warrant its consideration under s.473DD(a); and/or
(b)The Authority may not have discounted evidence on particularised points because it was only raised at SHEV interview stage or because the Applicant had not given further evidence about the Criminal Investigation Division (CID) looking for him on his return from Qatar or his detention in 2012 and when, as an unrepresented applicant, he was given opportunities to provide further relevant information but was not specifically directed by the delegate to these issues.
And, relatedly, had the Authority had correctly gone about its task for purposes of ss.473DB, DC and DD, and the subject information was considered or known it may very well have affected the consideration of the Applicant’s claims.
Further, and although the Applicant acknowledged that the Authority made some reference(s) to relevant country information about torture or abuse of asylum seekers returning to Sri Lanka, he contended it did not engage adequately with the detail and complexity of the material before it. The Applicant sought to highlight a series of paragraphs of country information and submissions that were before the Authority said to establish that, even after the war and change of government in 2015, there was an entrenched and pervasive culture of torture and abuse by the police and other authorities especially of persons in custody and even for minor offences – and asked the Court to find that the Authority did not adequately consider the relevant issue and part(s) of the DFAT Report in assessing the risk to the Applicant while being briefly held in detention or prison, while being questioned on return to Sri Lanka as an illegal emigrant and failed asylum seeker.
In response, the First Respondent maintained that the subject information was “new information” and the Authority was correct not to consider it pursuant to s.473DD. Further, that the Authority was otherwise entitled to find that the new claims were not credible personal information for purposes of s.473DD(b)(ii) and, in any event, that any error in application of s.473DD(b)(ii) was immaterial to the overall outcome of the matter. The First Respondent further contended that there was no obligation on the Authority to get new information as particularised and the Authority did not err in its application of s.473DC.
The First Respondent also asked the Court to find that the disclaimer which accompanied the statutory declaration was referable only to the delegate’s interview and did not permit the Applicant to raise additional claims before the Authority and therefore did not require reference in the Authority’s reasons. Further, that the disclaimer was irrelevant to each of the matters the Applicant claimed and therefore it should not be inferred that the disclaimer was overlooked.
Regarding the second particular to the first ground, the First Respondent characterised the Applicant’s contention as mere disagreement with the Authority’s consideration of the DFAT Report as distinct from proper identification of an error of jurisdiction.
Consideration
Relevant to these grounds, the Applicant’s first statutory declaration which accompanied his protection visa application, and was before the delegate, incorporated a statement prefacing the following paragraphs as constituting a summary of the Applicant’s claims about which he would be “happy to provide further detail at [his] interview”.
In the Authority’s decision, at [5]-[6], the decision maker found that parts of the submissions of the Applicant’s representative and the second statutory declaration were not a further elaboration of existing claims but rather new claims which amounted to “new information”. Relevant to the Applicant’s pleaded case, the new information summarised at [6] included the Applicant’s claims to:
(a)heavy involvement in supporting the Tamil National Alliance (TNA) having always been an active supporter;
(b)familial connections with the TNA, his aunt’s family having been active supporters and his uncle having owned a cooler vehicle used by the TNA;
(c)have campaigned continuously for 20 days in the area of Periakallaru in Batticaloa and in or around August 2012 when putting up posters in an area heavily occupied by the Tamil Makkal Viduthalai Pulikal (TMVP) was approached and identified as a member of the TNA and there was a violent altercation;
(d)many altercations at this time due to campaigning, with a member of the TMVP called Julian demanding people campaign for him or face kidnap, torture and death and it was because of the Applicant’s involvement in the violent altercation that the Applicant was arrested;
(e)have gone back to his aunt’s place after release from arrest but been asked to leave because they had received threats from the TMVP who had gone looking for the Applicant there and left a letter of demand for the Applicant to attend the TMVP party offices for interrogation, which letter was passed on to the Applicant;
(f)have gone to police to complain about the harassment but been advised by police to stay away from the TMVP as the police could not protect the Applicant - said to have occurred on 2 September 2012, being the day he was to report to the TMVP for interrogation;
(g)out of fear for his safety, to have left and gone to hide at acquaintances’ houses and his aunt arranged his journey to Australia out of concern for his safety and that of the family in Batticaloa; and
(h)fear harm from Sri Lankan authorities due to his explicit support for the TNA and to be a member of a particular social group as a consequence.
Also at [6], the Authority considered that the document earlier defined as the untranslated notice was new information and acknowledged that the notice was written in Tamil and the Applicant claimed it to be a notice of demand from the TMVP dated 30 August 2012, to attend their offices for questioning and which indicated that he was still being sought by the TMVP.
The Authority’s decision reflects that the decision maker had reviewed the review material including audio, presumably a reference to the audio of the delegate’s interview, and reached the state of satisfaction that the Applicant had been afforded ample opportunities to provide all of his complete and accurate claims in the arrival interview, his protection visa application and the delegate’s interview: at [7].
At [8], the Authority found that the new information about the Applicant’s support and campaigning for the TNA was significant to his claim for protection. The Authority took into account the Applicant’s explanation that he did not fully elaborate on his claims at the delegate’s interview because he was unrepresented and did not appreciate the importance but noted that explanation only went so far as to explain why the information was not raised at the delegate’s interview. Based on the evidence before the Authority, including the Applicant’s first hand experience of the specific incident and other claims the Applicant had made from the outset about his father’s previous suspected involvement with the authorities, the death of a friend, and attendance at a 2012 election rally and subsequent detention by police, the Authority rejected the contention that the Applicant did not appreciate the importance of this information as implausible and was not satisfied that the subject new information could not have been provided to the delegate or that it was credible personal information. Nor was the Authority satisfied that there were any exceptional circumstances to justify considering the subject information.
The Authority found there to be no explanation before it as to why the untranslated notice could not have been provided earlier given it was dated 2012 and the Applicant would have known about it as he said his aunt gave it to him when he returned to her place after release in 2012. The Authority similarly rejected the contention that the Applicant did not appreciate the importance of the document and rejected the notion that the Applicant did not have every opportunity to provide it to the delegate: at [9]. Further, the Authority found it was not able to assess the untranslated notice for purposes of making a finding as to whether it was “credible personal information” because it was written in Tamil and no translation had been provided at the time of its decision. Nor was the Authority satisfied that there were any exceptional circumstances to justify considering the subject information.
“New information” or an elaboration of the Applicant’s claims?
It was not contentious in these proceedings that the detail of the Applicant’s claims as expressed in the submissions of the Applicant’s representative and the second statutory declaration (summarised at [6] of the Authority’s decision) was not before the delegate. The first question arising from particular (a) to the first ground (relevant to all grounds) is whether this information is properly characterised as an elaboration or extension of the Applicant’s claims as before the delegate or “new information” in accordance with the meaning of the Act.
In the context of the discretion to get new information, “new information” meant any document or information of an evidentiary nature that was not before the Minister when the decision was made under s.65 to refuse the application and which the Authority considers may be relevant: s 473DC(1); AUS17 vMinister for Immigration and Border Protection (2020) 269 CLR 494 (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) (AUS17) at [3]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550 (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) at [25].
What exactly constitutes new information was explained in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Gageler, Keane, Nettle, Gordon and Edelman JJ) (Plaintiff M174) at [24], citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (Moore, Weinberg and Allsop JJ):
The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
In ESQ17 v Minister for Immigration and Border Protection [2019] FCA 826 Justice Stewart grappled with a similar issue and ultimately concluded at [59] that:
As indicated, information in this context is in the ordinary sense of a communication of knowledge about some particular fact, subject or event. The word “information” has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the relevant decision-maker: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [205] per Allsop J. There is nothing to suggest that what is “new”, as a qualifier to “information”, is to be assessed or determined with reference to whether the issue that it is relevant to is a new or a pre-existing issue. To the contrary, it is clear from the text of s 473DC(1) and the treatment of it in Plaintiff M174, that information may be “new” in relation to a pre-existing issue.
In respect of the Authority’s task, the threshold question was therefore not whether the information could have been provided earlier or why the information was not provided earlier but, rather, whether the information was relevant to a pre-existing or new claim.
The Authority’s decision did not expressly refer to the disclaimer in the Applicant’s first statutory declaration but that of itself is not an error of jurisdiction. The Authority’s reasons expressly acknowledge the Applicant’s contention that the subject new information was an elaboration of his earlier claims and otherwise engage with the substance of the Applicant’s first statutory declaration such that there could be no suggestion that its contents were entirely overlooked.
Addressing the sub-particulars to ground 1(a):
(a)The information about the Applicant’s support of and involvement in campaigning for the TNA (sub-particulars (a)(i) and (v)), which first appeared in the submissions of the Applicant’s representative and the second statutory declaration, as summarised at [6] of the Authority’s decision, extended beyond an elaboration of his earlier claim to have been arrested while putting up posters at a 2012 election rally and sought to establish a strong, long-standing and entrenched personal and familial involvement with the TNA. It is to be remembered that the Applicant’s claims in his arrival interview, protection visa application and at delegate’s interview were consistently limited to a suspected involvement with the LTTE (personal and familial) and, other than an attendance at a political rally putting up posters in 2012, any actual political involvement was expressly denied. It is a significant and fundamental alteration to those claims as initially put to subsequently claim an association, long-standing and explicit involvement with and support for the TNA as well as prior recognition by the TMVP.
(b)In respect of sub-particular (a)(ii), there was information about the Applicant’s claimed departure to and events while in Dubai in the Applicant’s first statutory declaration where the Applicant claimed that his parents were worried that the CID would detain him and encouraged him to leave the country and, able to obtain a work visa for Dubai, he left Sri Lanka in 2004. The Authority’s characterisation of the explanation later given at the delegate’s interview (at [19], which characterisation is not disputed in these proceedings) was that the authorities went to the Applicant’s home at least twice a month for about a year while he was in Dubai, and that their visits stopped in 2006 when his family were told he was to report on his return. The Authority rejected this claim for reasons given at [19], which concluded with the statement that the claim was only raised for the first time in the delegate’s interview and was illogical. The Applicant’s claim to have been of such interest to the authorities (in that he was subject of such a regular number of visits from the authorities in a relatively short period) was a significant addition where initially there were no visits to the Applicant’s home in Sri Lanka claimed to have taken place during this period at all. Viewed in context, I consider that the substance went beyond a mere elaboration of the initial claim and it was open to the Authority to rely on the Applicant’s failure to mention such a significant claim in his first statutory declaration submitted in support of his visa application.
(c)The Authority did not accept the Applicant’s claim to have been arrested and detained on return from Dubai in 2007 because he had left the country or otherwise (sub-particular (a)(iii)) and, in turn, did not accept that the Applicant went to stay with his aunt because of a fear for his safety. The Applicant’s first statutory declaration deposed to his circumstances on return from Dubai in 2007 but did not mention being captured in 2007 after returning from Dubai which - it is apparently accepted - was first raised at the delegate’s interview. The Authority found this to be inconsistent with the Applicant’s prior accounts in his visa application and arrival interview, at which points his claims were to have been captured on 2 occasions and to have continued working as a carpenter during the period 2007 to 2009. The Authority found that this claim as raised at delegate’s interview otherwise lacked detail. In circumstances where the claim to have been arrested and detained on return from Dubai in 2007 constituted a new and third claim of arrest first pressed at the delegate’s interview, it was significant and the Authority was entitled to have regard to those matters, as it did, in finding that this was new information not an elaboration of a pre-existing claim.
(d)In reliance on the Applicant’s consistency on the matter in the arrival interview and visa application, the Authority found that the Applicant was briefly detained by police after the time when he was found to have returned from working in Qatar (sub-particular (a)(v)) - in 2012 as a result of the political rally (poster) incident: at [25] and [27]. Notwithstanding the Authority’s observation of omission from the delegate’s interview, in this particular respect the Authority’s assessment of the information was not adverse to the Applicant and this particular takes matters nowhere.
To the extent that the Applicant sought to say that the disclaimer to his first statutory declaration ought be interpreted as operating to reserve a right to bring new information before the Authority, that contention ought be rejected.
Similar disclaimers given in this context have been considered in earlier authorities, with varying outcomes depending on the circumstances of each case: a useful discussion of which is outlined in DKN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 560 (Laing J) at [36]-[40]; see also ELC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 579 (Forbes J) at [130].
The approach for which the Applicant contends would, in my view, be contrary to the plain construction of the disclaimer itself which contemplated the provision of further detail at interview. The subject interview can only be read as the interview that took place before the delegate, being the only opportunity for interview that the Applicant was guaranteed to have under the statutory regime as it were. In any event, the approach for which the Applicant contends would be inconsistent with the statutory regime. In accordance with the statute, it was for the Applicant to put forward his claims from which the assessment against the statutory criteria was to be made and by which, on review before the Authority, the overarching requirement (with limited and conditioned exception) was that the Authority was to consider the review material provided to it and to do so without accepting or requesting new information. The alternate contention, if adopted, would effectively find in favour of an applicant’s ability to have unilaterally imposed an additional fetter on the Authority’s discretion to consider new information the exercise of which was conditioned by ss.473DD and could not have been intended.
Was the disclaimer a relevant fact or integer that was overlooked?
The alternative formulation of error, that the Authority overlooked (or ought be inferred to have overlooked) the disclaimer to the Applicant’s first statutory declaration ought fail for the same reasons as expressed above.
Did the Authority err in its application of the law as required by ss.473DB, DC and/or DD?
Accordingly, the Authority was correct to assess the information summarised at [6] of the Authority’s decision and subject of this ground 3 as “new information” for purposes of s.473DD. The Authority was therefore required to engage in an assessment of the criteria at (a) and (b) in the manner articulated in AUS17 before that information could be considered.
There was no issue in these proceedings as to the sequence of the Authority’s assessment or that it accorded with the approach outlined in AUS17. Rather, the Applicant sought to challenge Authority’s findings in relation to s.473DD(b)(ii) which in turn was said to affect its finding as to whether there were exceptional circumstances to justify its consideration within the meaning of s.473DD(a).
In undertaking its assessment of whether the new information was “credible personal information” for purposes of s.473DD(b)(ii), and accepting that the information was personal information, the Authority need only have been satisfied that the new information was capable of being accepted as truthful or genuine as distinct from the truth of the matters. Here, the Authority effectively found that the new information was entirely implausible by reason of the late articulation of such significant claims and, in assessing all of the materials (including the substance of the claims that were before the delegate), also took into account the absence of a persuasive explanation for raising the claims for the first time before the Authority. In the particular circumstances of this case and acknowledging the low bar on the established authorities, the better view is that the Authority was entitled to make such finding given the strong objective basis to disbelieve the genuineness of the new information.
In respect of the untranslated notice, the Authority was correct to find that it could not make an assessment in favour of the criteria at s.473DD(b)(ii) absent a translated copy which had not been provided in some 5 months since the untranslated notice was first given to the Authority.
Ultimately, the Authority’s conclusion that the new information was not “credible personal information” was available to it and I discern no error in this respect. As such, the Authority was not obliged to go on and determine whether there were “exceptional circumstances” as to justify consideration of the new information pursuant to s.473DD(a) and did not fail to discharge its function as required by s.473DB of the Act.
Although strictly unnecessary to determine, the Authority having dismissed the new information as entirely implausible, it is difficult to see how the consideration of it might have tended toward a realistic possibility of a different outcome: as in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) at [14], ABH18 v Minister for Home Affairs [2020] FCA 620 (Charlesworth J) at [45] and CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 (Markovic J) at [39]-[41]).
In respect of s.473DC, as the Applicant properly accepted, there was no obligation on the Authority to “get” new information pursuant to s.473DC however that power was to be exercised within the bounds of legal reasonableness.
The statutory context is important in that the scheme as it were displaced ordinary common law principles of procedural fairness. In reviewing a fast track reviewable decision, the Authority was required by the Act to pursue the objective of providing a mechanism of “limited review”: s.473BA.
The Authority’s task pursuant to s.473CC(1) was to review a decision of the delegate referred to it under s.473CA. The Authority was required to conduct the review de novo or afresh and was not confined to correction of error in the delegate’s decision: Plaintiff M174 at [17]. Nor was the fact that the Applicant was not represented at the delegate’s interview of itself a basis to find jurisdictional error.
I am not able to discern an error in the Authority’s application of s.473DC and decision not to obtain new information on the case as pleaded.
Did the Authority fail to consider relevant country information?
It is instructive to commence consideration of this component of the claim with a summary of the impugned paragraphs of the decision: [33]-[40].
At [33]-[35], the Authority considered the country information before it (from 3 primary sources cited as the DFAT Report, a “Country Policy and Information Note. Sri Lanka – Tamil Separatism. Version 4.0” prepared by the UK Home Office dated 31 March 2017 and an article titled “Silenced: survivors of torture and sexual violence in 2015” prepared by International Truth & Justice Project Sri Lanka dated 7 January 2016). In summary, the Authority found that the country information:
(a)Suggested a change in the situation in Sri Lanka since the Applicant’s departure and particularly since the election of the Sirisena government in 2015, incorporating examples of the progress made and more recent criticisms of slow progress in relation to some changes and citing the DFAT Report that in 2017 the monitoring and harassment of Tamils in day to day life had significantly decreased, was no longer state sponsored or systemic and that members of the Tamil community had described a positive shift in the nature of interactions with the authorities: at [33];
(b)Acknowledged that the government remained sensitive to the potential re-emergence of the LTTE, maintaining sophisticated intelligence on former LTTE members and supporters: at [34]; and
(c)Included more recent reports of incidents in 2015 of abductions, including white van abductions and torture in Sri Lanka which incidents had generally been perpetrated by paramilitary groups and victims were suspected of having some involvement in the resurgence of the LTTE or bringing Sri Lanka into disrepute: at [35].
As outlined in the context to these reasons, at [35] to [40] the Authority applied the country information to the evidence before it and made findings including that: the Applicant was of no ongoing interest to Sri Lankan authorities after his detention in 2012; based on the Applicant’s profile and country information there was no real chance of his detention, interrogation, torture or otherwise harm because of his ethnicity, origin, political opinion and previous experiences including his detention in 2009 and 2012, because his father was previously detained or because he has lived in Australia for past 5 years; and although the Applicant may be identified by authorities as a returning asylum seeker and likely detained and held at the airport in processing on return, this did not constitute ‘serious harm’.
It is apparent that the Authority gave consideration to the country information before it and was cognisant of those parts of the country information that were indicative of an ongoing risk for Tamils by the police and authorities, including the ongoing risk of short periods of detention. Those features of the country information were considered in the context of the Applicant’s claims and the findings the Authority had made about the Applicant’s profile and level of ongoing interest to the authorities.
That the Applicant did not agree with the outcome of the Authority’s assessment and can point to the availability of another conclusion or different points of emphasis in the country information is not to the point. The assessment of country information and the weight to be given to it was a matter for the Authority. A redetermination of the weight to be given is not the role of the Court on judicial review.
Resolution of grounds 1 and 3
There is no error established in respect of grounds 1 and 3.
GROUND 4
Respective contentions
By this ground, the Applicant contended that the Authority’s decision was affected by legal reasonableness and therefore failed to discharge its statutory function. This was said to have occurred by reason of those parts of the decision to which ground 1 particular (a) related in addition to a series of 3 particular findings which were said to have no logical or probative basis on the materials.
The First Respondent said this ground could not succeed and sought to characterise the argument as an impermissible invitation to engage in an assessment of the merits of the Authority’s decision.
Consideration
It is uncontroversial that a decision maker is required to act reasonably, in a legal sense: Plaintiff M174/2016.
Acknowledging the caution of the High Court against use of labels such as “proper, genuine and realistic consideration” (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) at [26]), it may be accepted that legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] 297 ALR 225 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) (Li) at [68] and [76]). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (Gordan J) at [43]; citing Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (Gummow ACJ, Heydon, Crennan, Kiefel And Bell JJ) (SZMDS) at [135]).
However, the test has been described as “necessarily stringent” (Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) at [11]). It is not met where reasonable minds could have come to different conclusions (SZMDS at [130]-[131] per Crennan and Bell JJ). It remains that the demonstration of legal unreasonableness in the context of Part 7AA and the subject provisions necessarily carries a “demanding standard”: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (Beach, O'Callaghan and Anastassiou JJ) at [110].
Was the Authority’s decision not to consider new information legally unreasonable?
The Authority’s decision not to consider the new information subject of particular (a) to ground 1 above was not legally unreasonable in the established sense.
I have earlier concluded that the Authority did not overlook the disclaimer in the Applicant’s first statutory declaration and was correct to assess the subject claims as “new information”. The Authority gave written reasons for its assessment that the subject information was “new information” as distinct from an elaboration of earlier claims which reasons were logical and open to be made on the evidence before it.
For the reasons given in respect of ground 3 above, the Authority also did not err in its application of the conditions to s.473DD (namely, at (b)(ii)). The Authority reasoned that the information was not “credible personal information” because of the late articulation of the new information, that the lateness were inadequately explained and on analysis of the substance of the claims that the Applicant had put before the delegate. These were logical and probative reasons for the finding that the new information was not “credible personal information” that were open to the decision maker.
Further, there was nothing unreasonable about the Authority’s consideration that the untranslated notice was not able to be assessed against the criteria at s.473DD(b)(ii) where the Applicant had representation before the Authority, which representation had undertaken to provide a translated version shortly thereafter and did not seek to do so in the period of some 5 months that followed before the decision was delivered.
Consequentially, there was no basis for the Authority to consider the information that it had assessed as “new information” at all.
Were the Authority’s particular findings about scarring, detention and staying with his aunt legally unreasonable?
It is indeed a high bar to be overcome before a Court will find legal unreasonableness on judicial review.
It is apparent from the Authority’s decision that it was conscious that the Applicant had a difficult past and made some positive findings of claimed historic events including that the Applicant: bore significant scarring as a result of a medical condition and operation (at [16]); may have been questioned by the CID on at least one occasion in 2003 (at [18]); was detained, mistreated and interrogated for a period of 3 months in 2009 on suspicion of hiding weapons and LTTE involvement and released on intervention of a Catholic Bishop (at [22]-[23]); and may have stayed with his aunt in Batticaloa on return from Qatar but not out of fear for his safety (at [26]).
Critical to the Authority’s overall assessment of the criteria at ss.36(2)(a) and (aa) were its findings of the Applicant’s profile and that he was of no ongoing interest to the Sri Lankan authorities. Those findings were based on the Applicant’s own evidence that, notwithstanding the findings of short detention by police, the Applicant was not specifically targeted, was quickly released and not charged, had worked in Sri Lanka right up until the day he left (excluding periods of absence when working in Dubai, Qatar and following an operation), there was a lack of interest in the Applicant since he left Sri Lanka and the Applicant had experienced no difficulty departing and re-entering Sri Lanka when travelling to and from Dubai and Qatar: see, for example, at [23], [24], [26], [35].
As earlier considered in respect of ground 1, the Authority also took into account the country information before it.
That another decision maker might have decided differently is not to the point. It was a matter for the Authority to weigh the material it had before it. I am persuaded that the Authority’s decision is logical and not legally unreasonable as pleaded.
Resolution of Ground 4
The fourth ground is not made out.
CONCLUSION
For the above reasons, the amended application must be dismissed. The First Respondent’s application for costs in the amount of $8,371.30 is reasonable and I will order accordingly.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 6 June 2025
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