AOK19 v Minister for Immigration - [2020] FCCA 2579

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOK19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2579

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – adverse credibility findings – consideration of what constituted “new information” – failure by applicant to comply with paragraph 30 of Immigration Assessment Authority Practice Direction No. 1 – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB, 473DD,

473FB, 473FB(5).

Cases cited:

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203.

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant:

AOK19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 57 of 2019

Judgment of:

Judge Egan

Hearing date:

10 September 2020

Date of Last Submission:

10 September 2020

Delivered at:

Brisbane

Delivered on:

16 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr C Jacobi

Solicitors for the Applicant:

Dentons

Solicitors for the First Respondent:

Mr Cummings of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application filed on 14 August 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADG 57 of 2019

AOK19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 13 July 2013. On 27 January 2017, the applicant applied for a Class XE Subclass 790 Safe Haven Enterprise Visa (SHEV).
On 8 October 2018, the applicant attended an interview with a delegate of the Minister. After such interview, the applicant was invited to provide more information in relation to his claims. On 23 October 2018, the applicant provided a statutory declaration and other evidence in response to the invitation. On 6 December 2018, the delegate refused to grant the visa application.
On 11 December 2018, the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review under Part 7AA of the Migration Act 1958 (Cth) (‘the Act’). On 19 December 2018, the applicant’s solicitor was provided with a copy of the Authority’s relevant Practice Direction dealing with the conduct of matters before it, such Practice Direction being entitled “Practice Direction for Applicants, Representatives and Authorised Recipients”. [1]
[1] Court Book (CB) pp. 160 – 164 inclusive.
By letter dated 9 January 2019, sent by MSM Legal to the Authority on 11 January 2019, [2] a statutory declaration of the applicant dated 10 January 2019, [3] hyperlink references to certain documents and written material under the respective headings of ‘Submission’, ‘Mr [Name of applicant]’s Profile’, ‘Mr [Name of applicant]’s Presence on the Sri Lankan Watch List’, ‘Changing Political Situation’ and ‘New Information’ were given to the Authority.
[2] Court Book 180 – 185 inclusive
[3] CB pp. 186 – 190 inclusive.
On 17 January 2019, the Authority affirmed the decision of the delegate.
On 7 February 2019, the applicant filed an Originating Application for Review of the decision of the Authority. On 14 August 2020, the applicant filed an Amended Application for Review, the grounds of which were as follows:
“Grounds of application
Ground 1: Failure to consider claims by wrongly identifying they were new
1. The Authority erroneously regarded itself as not permitted to consider "claims" (or submissions) under section 473DD and thereby failed to consider claims/submissions made by the applicant, with the result that it failed to undertake the review tasked to it by section 473CC of the Migration Act 1958 (Cth), in that:
a. The applicant sought to advance claims/submissions before the Authority that [CB195]:
i. The applicant was released (from forced recruitment) by the LTTE in 2008 because they were satisfied that his family had already provided significant support in other areas - through his father providing tractors;
ii. S, an informer working for the Sri Lankan government, may be under the impression that the applicant was with the LTTE from 2008 until 2010;
iii. As he was from the same area as the applicant, S was in a position to have witnessed the applicant's interactions with the LTTE in 2008 and 2009;
iv. As he returned from a battle zone at the end of the war, people would have assumed that the applicant was a LTTE combatant;
v. The applicant is perceived by the CID as being a former 'high level member' and/or high level supporter of the LTTE because:
1. His family were known or suspected to be strong supporters of the LTTE because he was permitted to be released from his obligation to fight for the LTTE in 2008:
2. He is or may be perceived to have been with the LTTE since 2008 due to S; and
3. He fled Sri Lanka while his LTTE links were being investigated.
b. The Authority did not consider the claims/submissions (CB195-6 at [4] – [7]);
c. The Authority did not consider the claims/submissions on the basis of either:
i. an erroneous factual finding that the claims/submissions were not before the delegate (CB195 at [5]): or
ii. an erroneous view that section 473DD prevented it from considering claims/submissions unless section 473DD (a) and (b) were satisfied;
d. In fact:
i. The claims/submissions were before the delegate ([CB61-62, CB64, CB134]); and
ii. Section 473DD did not prevent the Authority from considering claims/submissions unless section 473DD (a) and (b) were satisfied;
e. The Authority's failure to consider the claims/submissions was material to its decision in that, had it considered the claims/submissions, it could not be said there was not a realistic possibility that the Authority's decision could have been different.
Ground 2: Failure to consider claims about risks on return to Sri Lanka by incorrectly applying the practice direction
2. Authority failed to consider claims/submissions made by the applicant with the result that it failed to undertake the review tasked to it by section 473CC of the Migration Act1958 (Cth) by reason that it misconstrued the discretion contained in practice direction dated 17 December 2018 wrongly excluded the consideration of materials, in that:
a. The applicant made claims/submissions to the Authority to the effect that the situation in Sri Lanka had changed shortly before, and since, the delegate's decision on 6 December 2018, and that it was now more dangerous for him there (CB182-185).
b. The practice direction dated 17 December 2018 was issued by the President pursuant to section 473FB. Pursuant to section 473FB(5), the Authority was not required to accept new information or documents from the applicant if the applicant failed to comply with the practice direction.
c. The practice direction (CB160-164) provided (relevantly):
30. If you provide or refer to new information such as country information reports or media articles, you must attach a copy of that information or an extract of the part(s) of the information and identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable….
33. At our discretion, we may decide not to accept new information that does not comply with these requirements.
d. The Authority:
i. found that the practice direction operated such that it was entitled to disregard entirely a submission which made a claim about changed political circumstances in the country to which he would be returned and in any event in which the basis (or source) for the claim was identified; and
ii. that approach misconstrued the relevant parts of the practice direction, which is concerned with the manner of the provision of supporting materials (and preventing the applicant imposing an obligation upon the IAA to itself make inquiries to obtain documents so as to determine the nature of the claim). Such a provision does not prevent it considering submissions, and further apparently involved no consideration of the factors relevant to the discretion in item 33.
e. The error/s are material in that if the Authority had considered the summary provided, or the parts of the applicant's submissions which referred to documents, it could not be said there was not a realistic possibility that the Authority's decision could have been different.
At [3] of its reasons, the Authority noted that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Act.
At [10] of its reasons, the Authority recorded the applicant’s claims for protection as follows:
·“The applicant is a Tamil male from [Town A], [Omitted] District, in the north of Sri Lanka;
·In 2007 – 2008, the applicant’s father allowed the LTTE to use his tractors to transport materials. People saw the applicant’s family as people who helped the LTTE;
·In 2008, the applicant’s maternal cousin was taken by the LTTE for compulsory training. Eight months later he died fighting for the LTTE;
·In 2008, the applicant was taken and forced to join the LTTE. He was held for three days before being released with the assistance of his father and others;
·Following this, due to fear of forced recruitment, the applicant stayed at home and remained hidden. He was home schooled and only went out to attend his exams;
·As the war intensified, the applicant’s family relocated to several different areas;
·One of the applicant’s younger sisters was severely wounded following a shell attack;
·On 16 May 2009, the applicant and one of his younger sisters travelled by sea to Sri Lankan Army (SLA) controlled Vattapalai Amman Temple, and were later joined there by other family members;
·The applicant and his family were captured by the SLA and taken to Puliankulam and questioned. The applicant was not heavily questioned because he was carrying his wounded sister;
·The applicant’s family was taken to the Zone 6 camp in Vavuniya District. While there, he was taken for an enquiry with the CID twice. When asked about his LTTE involvement, the applicant advised that he was in hiding (during the conflict) and did not know anybody in the LTTE;
·In February 2010, the applicant and his family returned to [Town A]. There was a SLA camp nearby and the SLA were always watching. The applicant helped his father with farming;
·In June 2013, two CID officers took the applicant to the CID office. He was abused physically and verbally. He was threatened at gunpoint with death unless he admitted to being involved with the LTTE. He denied involvement but the CID did not believe him. They took the applicant’s details, including his fingerprints and contact numbers. After many hours of enquiry, the CID released him and advised that he would be called on again shortly;
·After three days, two CID officers returned to the applicant’s house and informed his father that he should return to the CID office. However, the applicant was staying at his elder’s sisters house due to fear. It was then that the applicant’s father arranged for him to come to Australia;
·After he left Sri Lanka, the CID contacted his father repeatedly about the applicant’s whereabouts. His father also informed the applicant that a person named S, one of the main persons of PLOTE (The People's Liberation Organisation of Tamil Eelam), a former Tamil militant group and now political party, came to [Town A] in 2013 and was working as an informer for the CID, and that S is the reason the applicant was taken by the CID in June 2013;
·If returned to Sri Lanka, the applicant fears he will be harmed or killed by the CID due to his imputed LTTE links, arising from his Tamil ethnicity. He will be arrested because he is on the CID watchlist.”
At [13] – [14] of its reasons, the Authority set out the relevant principles relating to refugee assessment and what constituted a well-founded fear of persecution pursuant to the provisions of ss. 5H(1) and 5J of the Act respectively.
At [15] – [39] inclusive of its reasons, the Authority carefully considered the claims made by the applicant, finding that:
a)an attempt had been made by the LTTE in 2008 to recruit the applicant, and that he had been held for 3 days before his release, and that after his release the applicant kept a low profile and was home schooled; [4]
b)the applicant’s claim, first raised in the SHEV interview, that the applicant was taken by the LTTE and forced to fight on the front line in 2009, was unconvincing; [5]
c)the applicant had made a new claim before the delegate after having been pressed by the delegate as to why the CID had allegedly interrogated him in 2013 when the war had finished in 2009. The applicant’s new claim was that he had been detained by the LTTE prior to the end of the war and that he had come to the attention of the CID in 2013 because of an informant named ‘S’; [6]
d)it was difficult to accept that the applicant had failed to mention any alleged involvement by him as a front line recruit for the LTTE in 2009 during the war in circumstances where such details had never been provided prior to the SHEV interview, and where it was said that the applicant had been advised by his previous lawyer not to make reference to such involvement; [7]
e)it was not insignificant that at the applicant’s arrival interview, the applicant had said that he started to make arrangements to leave Sri Lanka in May 2013, [8] when that was at a time prior to the applicant’s alleged detention by the CID in June 2013, as set out in the applicant’s statement made on 15 December 2016; [9]
f)upon a cumulative consideration of all of the evidence, the applicant was not recalling a genuine personal experience in relation to events said to have been experienced by him between 2009 and 2013. It was found that had the applicant been forcibly recruited and trained by the LTTE in 2009, and fought in the war, that the applicant would have mentioned such a material claim in his SHEV statement which had been prepared with the assistance of a legal representative. It was not accepted that the applicant had failed to mention those claims at an earlier time on advice from his legal representative. It was found implausible that the applicant’s father was never questioned directly as to his support for the LTTE, as claimed by the applicant, when country information indicated that it was not just former LTTE fighters who were of interest to the Sri Lankan authorities after the end of the war, but also others who had provided low level support, and who were family members of cadres. It was found unlikely that had the applicant been taken into custody in June 2013 suspected as being a former LTTE fighter, that he would have been released the same day. An explanatory letter supporting such scenario was not accepted as being genuine due to the prevalence of document fraud throughout Sri Lanka. In such circumstances, it was found that the applicant had not been recruited by the LTTE, fought in the war alongside the LTTE, or had been identified as a former LTTE cadre by the Sri Lankan authorities; [10]
g)the applicant’s father had not been pursued by the CID since the applicant had departed Sri Lanka in 2013, including as recently as 2018.
[4]        [18] of Authority’s reasons at CB p. 200.
[5]        [20] of Authority’s reasons at CB p. 200.
[6]        [24] of Authority’s reasons at CB p. 201.
[7]        [26] of Authority’s reasons at CB p. 201.
[8]        [26] of Authority’s reasons at CB p. 202.
[9]        Applicant’s Statement – CB pp. 61 – 65 at p. 62.
[10]      [29] of Authority’s reasons at CB p. 202.
The Authority was entitled to find that the failure by the applicant to make early claims factually the same as or similar to later claims as to his LTTE involvement impacted adversely upon the applicant’s credibility. Such conclusion was open on the evidence before the Authority. As Thawley J said in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24]:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
The Authority carefully considered country information which indicated that international protection was not warranted in cases where a person was a past member, or connected to, the LTTE, unless they had a significant role in the organisation, or if they had been, or were perceived to have been, active in post-conflict Tamil separatism activities.

The Authority weighed up all of the evidence before it and arrived at considered findings that the applicant was not owed refugee protection, as was reflected in [32] – [39] inclusive of its reasons as follows:
“[32] While I have accepted that the applicant was questioned and harassed by the SLA in his home area between 2010 and 2013, I am not satisfied that he faces a real chance harm for this reason, or any other reason, on return to Sri Lanka in 2019. Country information from the UK Home Office assesses that international protection is not warranted in cases where a person evidences past membership or connection with the LTTE, unless they had a significant role in it, or if they are, or perceived to be, active in post-conflict Tamil separatism. Similarly, DFAT assessed in 2018 that high-profile individuals with links to the LTTE would continue to be of interest to the Sri Lankan authorities, and indicate that aside from the LTTE leadership former members who have committed terrorist or serious criminal acts during the conflict, or who provided weapons or explosives to the LTTE, may be considered high-profile. In the applicant’s circumstances, I am not satisfied that he was, or is perceived to be, a person who had a significant role in the LTTE, including its leadership, or a person active in post-conflict Tamil separatism. Nor am I satisfied that he was, or is perceived to be, a person who committed terrorist or serious criminal acts during the conflict, or who provided weapons or explosives to the LTTE.
[33] According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including due to separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. Based on my findings in respect of the applicant’s circumstances, I am not satisfied that he is on a watch list of the Sri Lankan security services.
[34] Having had regard to the entirety of the evidence before me, I am not satisfied that in 2019 the applicant is a person of interest to the Sri Lankan authorities due to any actual or imputed LTTE membership or links, including familial links. Accordingly, I am not satisfied that on return to Sri Lanka he faces a real chance of being imprisoned, mistreated, or killed, by the CID due to any imputed or actual LTTE activities, due to familial LTTE links, or for any other reason.
[35] Although not expressly raised as a claim for protection, the delegate considered whether the applicant faced harm in Sri Lanka due to his profile as a Tamil from a former LTTE-controlled area in the north of Sri Lanka.
[36] Country information indicates that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009. In 2018, DFAT assessed that all Sri Lankans face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment, and housing. While there is no official discrimination on the basis of ethnicity in public sector employment, DFAT assess that some Tamils report discrimination in employment, particularly in relation to government jobs. DFAT further assess that the limited Tamil appointments are a consequence of factors such as disrupted education due to conflict and language constraints. The applicant has not claimed to have experienced ethnic based societal discrimination in the past, and nor has he claimed to have sought or been denied employment in the public sector. While I accept that the applicant may be at some risk of encountering a degree of societal discrimination solely on the basis of ethnicity, on the evidence before me, I am not satisfied that this would constitute serious harm.
[37] In 2017, the UK Home Office reported that being of Tamil ethnicity does not in itself warrant international protection. Recent reports do not mention that Tamils are at risk of harm based on their prior place of residence. I have also considered the country information from DFAT and other sources which indicate that Tamils are not being systematically targeted and subjected to serious harm because of their race.
[38] Having regard to the evidence, I am not satisfied that the applicant faces a real chance of harm from the CID, or any other arm of the Sri Lankan government, on account of his ethnicity, his previous residence in the north, or due to any residence in an area controlled by the LTTE, or a combination of these factors, upon his return to Sri Lanka now, or in the foreseeable future.
[39] Country information indicates that persons suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case. Given my findings about the profile of the applicant, and having regard to the country information before me, I conclude that he is not a person who faces a real chance of harm by virtue of any actual or imputed LTTE connections, including familial connections. I am not satisfied that on return to Sri Lanka the applicant faces a real chance of harm from the Sri Lankan authorities, including the CID.”
The Authority also referred to country information concerning the likelihood of harm being suffered by the applicant in the context of him being a returning asylum seeker. At [45] and [46] of its reasons, the Authority said as follows:
“[45] DFAT report that while the Sri Lankan government has reportedly decreased surveillance of returnees, anecdotal evidence indicates that the CID regularly visited and/or telephoned returnees in the north of Sri Lanka in 2017. DFAT assess that surveillance of returnees contributed to a sense of mistrust of returnees within their community. DFAT also report that some returnees reported social stigma from within their communities on return, and that in some communities people resent the financial support returnees are provided. DFAT further assess that societal discrimination can affect a returnee’s ability to secure housing and employment. A small percentage (0.3%) of returnees interviewed by the UNHCR in 2016 indicated that they had security concerns following their return to Sri Lanka. While I accept the applicant may be visited by the authorities following his return to Sri Lanka, and that he may face social stigma or societal discrimination within his local community due to his profile as a returnee asylum seeker, I am not satisfied that he would face treatment that would constitute serious harm as defined by the Act. I am also mindful that the applicant’s family continue to reside in Sri Lanka and would be able to assist him to reintegrate into the community and life in Sri Lanka.”
[46] For these reasons, and considering the applicant’s individual circumstances, I am not satisfied he faces a real chance of harm due to his asylum application in Australia, or due to being a failed Tamil asylum seeker from Australia now, or in the reasonably foreseeable future, if he returns to Sri Lanka.”
Having made the findings that it did, the Authority found that the applicant did not have a well-founded fear of persecution within the meaning of s. 5J of the Act. [11] It found that the applicant did not meet the criteria under s. 36(2)(a) of the Act.
[11] [52] of Authority’s reasons at CB p. 207.
The Authority also found that although it accepted that the applicant may face a level of societal discrimination as a Tamil, or as a returning asylum seeker, country information confirmed that the trend of the authorities monitoring Tamil civilians in day-to-day life had eased since 2009. The Authority found that it was not satisfied that any monitoring or social discrimination that the applicant might face if returned to Sri Lanka would constitute significant harm as defined in the Act. It found that there was not a real risk that the applicant would suffer significant harm. [12]
[12] [57] of Authority’s reasons at CB p. 208.
The Authority found that the applicant did not meet the criteria under s. 36(2)(aa) of the Act.

Grounds for Review

Ground 1

Ground 1 of the Amended Application for Review was a claim that the Authority had erroneously applied s. 473DD of the Act, and had therefore failed to consider claims/submissions made by the applicant, leading it into jurisdictional error. Section 473DD of the Act provided as follows:
“Section 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.”
It was asserted on behalf of the applicant that the Authority should have considered that the claims made by the applicant in the 9 January 2019 letter, and the statutory declaration of the applicant sent with it, ought not to have been considered, either in whole or in part, as new information. It was submitted that such material constituted submissions or further claims about information and claims which had earlier been made and raised before the delegate.
That submitted distinction was referred to by Mortimer J in CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [8] where His Honour said:
“[8] The appellants’ argument was that the Federal Circuit Court erred in finding the second appellant had not made a “new claim” before the Authority (as indeed the Authority appeared to accept at [18] of its reasons). Describing what is in issue as a “claim” may pay insufficient attention to the description of “information” given by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [24], as “a communication of knowledge about some particular fact, subject or event”. As senior counsel for the Minister contended in this appeal, what matters is whether what is in a “claim” are new or different facts, or factual information, or whether what is occurring is that a visa applicant is relying on the same facts, or factual information, but characterised in a different way. In the latter case, this will not be new information. Questions of characterisation are in the nature of a submission: they are not facts, or factual information.
At [5] of its reasons, when referring to the 9 January 2019 letter and the accompanying statutory declaration of the applicant, the Authority purported to list information and claims that had not been before the delegate as follows:
“[5] The IAA statement and/or the IAA submission refer to the following information and claims that were not before the delegate:
a. The applicant was released (from forced recruitment) by the LTTE (Liberation Tigers of Tamil Eelam) in 2008 because they were satisfied that his family had already provided significant support in other areas – through his father providing tractors and other financial support;
b. S, an informer working for the Sri Lankan government, may be under the impression that the applicant was with the LTTE from 2008 until 2010;
c. As he was from the same area as the applicant, S was in a position to have witnessed the applicant’s interactions with the LTTE in 2008 and 2009;
d. As he returned from a battle zone at the end of the war, people would have assumed that the applicant was a LTTE combatant;
e. The applicant is perceived by the CID (Criminal Investigation Department) as being a former ‘high level member’ and/or high level supporter of the LTTE because:
i. his family were known or suspected to be strong supporters of the LTTE because he was permitted to be released from his obligation to fight for the LTTE in 2008;
ii. he is or may be perceived to have been with the LTTE since 2008 due to S; and
iii. he fled Sri Lanka while his LTTE links were being investigated.”
At [6], presumably referring to those matters listed in [5] of its reasons, the Authority found that the information and claims were new information which could have been provided to the Minister before the delegate made a decision. At [7], the Authority found that it was not satisfied that the information was credible personal information. It pointed to implausible aspects of the applicant’s claims as well as inconsistencies in such claims. It dealt with those matters as follows:
“[7] Turning now to whether I consider this new information is credible, in the sense of capable of being believed, I have considered the applicant’s previous evidence, which I find, overall, inconsistent with the new information. For example, the applicant’s claim that he will be perceived as ‘a high level member’ or supporter of the LTTE because he was released by the LTTE in 2008 due to the significant support his family had ready provided the LTTE, was inconsistent with his evidence in the SHEV interview that he was never advised by the LTTE why he was released, and that he was of the view that he was released because he was wearing a “white school uniform”. I also note the applicant’s evidence in his written statement of claims dated 15 December 2016 (SHEV statement) and in the SHEV interview that his father provided tractors to the LTTE to transport goods and personnel; however, he made no mention of providing other financial support. The new claim that S may have suspected the applicant had been linked with the LTTE between 2008 and 2010 and that S may have personally witnessed the applicant’s interactions with the LTTE in 2008 and 2009, due to him living in the same area, was different to the claims before the delegate. His evidence in his SHEV statement was that while S was originally from the applicant’s home area of [Town A] in [Omitted] District, he actually lived in [Town B] and returned to [Town A] in 2013. Further, the applicant’s evidence in the SHEV interview was that his interactions with the LTTE in 2009 occurred outside of his home area, in [Town C]. In respect of the new claim and reasons that the applicant would be perceived by the Sri Lankan authorities as a former ‘high level member’ and/or high level supporter of the LTTE, I note that at no time has he claimed that his family were known or perceived as strong supporters of the LTTE on account of him being released from the LTTE in 2008. Further, as noted above, his claim that he was or may have been suspected by S to have interacted with the LTTE since 2008 because S lived in the same area is different from his evidence in his written claims. In respect of the claim that he would imputed as a LTTE combatant due to him returning from a war zone after the conflict, I note this differs from his evidence in his SHEV statement and SHEV interview where he claimed that at the end of the conflict he and his family entered the army controlled area and were in a refugee camp before being resettled in their home village in 2010. I also note his evidence in the SHEV interview was that after deserting the LTTE in the final battle, he escaped and mingled with the general population, including with his parents and sisters. I also consider the applicant’s new claim that he is perceived as high level due to him departing Sri Lanka while his links to the LTTE were being investigated as speculative. While I accept that the applicant had claimed before the delegate that he feared being perceived by the Sri Lankan authorities as a former-LTTE cadre who escaped rehabilitation, a profile that Department of Foreign Affairs and Trade (DFAT) assess is considered low-level, the claim that will be viewed as a high level member/supporter of the LTTE appears to now be mentioned in response to the country information cited in the delegate’s decision that indicated that persons who evidenced past membership or connection to the LTTE would not normally come to the attention of the authorities unless they had a significant role in it. Having regard to the above, I am not satisfied that points a – e constitute credible personal information in the relevant sense.”
It was further submitted on behalf of the applicant that the characterisation of some of the information as new information was clearly incorrect – for example, the content of paragraph [5] e. iii. was submitted as being incorrect because the factual claim relating to the applicant’s LTTE links being investigated had already been recorded in the applicant’s earlier statement dated 15 December 2016. [13] It had been claimed that in June 2013 the applicant had said that he had been taken to a CID office, verbally and physically abused, and pushed and threatened to be shot dead before being released. There is some force in the applicant’s submission.
[13] At CB p. 62.
However, irrespective of whether the content of the 9 January 2019 letter and the accompanying statutory declaration was or was not “new information”, the Authority had made findings that were adverse to the applicant on the substantive issue as to whether or not the applicant had ever been involved, in any significant way, with the LTTE. The applicant was at school in 2008 and aged about 16 years when the applicant claims that an attempt was made for him to be forcibly recruited into the LTTE. The Authority made adverse credibility findings against the applicant based upon implausible and inconsistent aspects of his evidence. It rejected the fundamental premise of the applicant’s claims, namely that he was actually involved with the LTTE. To the extent that the Authority made such findings, the Authority also implicitly rejected the proposition that the applicant could have been perceived to have had any high profile involvement with the LTTE. In such circumstances, the applicant’s submission that the Authority had fallen into jurisdictional error by failing to consider any claims which went to the applicant being perceived as having any high level LTTE involvement was otiose.
The failure on the part of the Authority to consider claims which were based upon a rejected factual proposition does not constitute jurisdictional error. A claim stridently advanced, whether based upon the same or similar facts or information earlier raised by an applicant, is not thereby rendered substantial, and therefore worthy of consideration, if there is no foundation for the claim.
The Court finds that the content of the 9 January 2019 letter and the accompanying statutory declaration did not constitute new information warranting consideration pursuant to the provisions of s. 473DD of the Act. Rather, the Court finds that such constituted a refinement of claims and submissions earlier made which would have warranted consideration by the Authority had the Authority not rejected the fundamental premise of the applicant having any LTTE involvement of note.
The Court adopts what was said by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97] and [111] – [112] as follows:
“[97] In Minister for Immigration and Multicultural Affairs v Yusuf, the passage cited by McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, from Craig v South Australia at 179 shows that the High Court was concerned with the results or consequences of an error of law:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
…
[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[112] As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.”

The principles for determining whether jurisdictional error has or has not occurred were set out by Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 at [81] as follows:
“[81] Thirdly, I consider that there are some additional legal principles to be considered in determining whether or not the Tribunal has committed jurisdictional error by failing to evaluate a substantive and clearly articulated submission. They are as follows:
(a) as the High Court stated in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]):
…The duty imposed upon the Tribunal by the Migration Act is a duty to review.
In my opinion, the duty to review obliges the Tribunal to consider and deal with submissions of substance which are clearly articulated. As noted above, in assessing whether a submission is one of substance it may be relevant to take into account whether it relies upon an established fact, but that is not the only way in which that requirement may be met. Substantiality might also be established by the fact that, for example, a submission has been made in direct response to an important issue which the Tribunal has raised which bears upon the state of the satisfaction which it is required to meet under s 65 of the Act. In my view, that is the case here as the written submissions dated 20 February 2013 were provided in direct response to the Tribunal’s stated concerns regarding the credibility of the extortion claims and the appellant’s ignorance of the CID officer’s identity;
(b) merely because the Tribunal fails to deal with a submission does not necessarily amount to jurisdictional error. Similarly, the Tribunal’s failure to ignore relevant evidence or other material does not necessarily establish jurisdictional error (see the pertinent observations of Robertson J in SZRKT at [97]);
(c) there is no requirement for the Tribunal to refer to every piece of evidence or every contention made by an applicant in its statement of reasons because it may be that some evidence is irrelevant and some contentions may be misconceived. However, as the Full Court held in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]:
… there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason….
(d) there is a long line of authority which deals with requirements of s 430 of the Act and the circumstances in which a failure by the Tribunal to refer to particular evidence or make a particular finding such as to give rise to jurisdictional error can be inferred from the absence of any reference to those matters in the Tribunal’s statement of reasons (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [60]-[68] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [67]-[69] per McHugh, Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZGUR [2011] FCA 1; (2011) 241 CLR 594 at [32] per French CJ and Kiefel J and at [69]-[70] per Gummow J). However, in my view, different considerations may arise in a case where there is a failure to deal with a submission of substance (and not a failure to take into account a relevant consideration, consider evidence or make a finding of fact). As noted above, s 430 does not explicitly require the Tribunal to set out or summarise submissions which are made to it. Having said that, however, it is clear, as the Minister acknowledged, that a failure to deal with a submission of substance could amount to procedural unfairness. I would add that such an error might also be described as a constructive failure to exercise jurisdiction, noting that the Tribunal’s core statutory task is to conduct a review. In either case, jurisdictional error may be present;
(e) notwithstanding that s 430 does not in its terms impose any obligation on the Tribunal to set out or summarise submissions of substance which are clearly articulated and made to it, in considering whether the Tribunal has in fact failed to consider and determine such a submission, it is appropriate to have regard to the Tribunal’s statement of decision and reasons and, in particular, the manner in which that document describes and deals with submissions made to the Tribunal which it has received. In an appropriate case this might involve a consideration of any part of the Tribunal’s statement of reasons which summarises the submissions it has received, as well as the parts of the Tribunal’s reasons which purport to consider and determine the submissions it has received. Accordingly, it may be appropriate to pay careful attention to the structure of the Tribunal’s reasons;
(f) in SZRKT, in considering whether the Tribunal is obliged to consider a document, Robertson J said, consistently with VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], that much depends on the circumstances of the case and the nature of the document. Justice Robertson added that relevant factors to be considered where the question is whether there was a failure to consider corroborative evidence, include the cogency of the evidentiary material and also the place of that matter in the assessment of the applicant’s claims. In my view, similar factors are also relevant in considering whether the failure to deal with a submission of substance gives rise to a jurisdictional error (at [112]);
(g) the appellant carries the burden of persuading the Court to draw an inference that the failure to deal with a submission which the Tribunal was obliged to consider amounts to a jurisdictional error (see, for example, MZYTS at [53]); and
(h) it is important not to lose sight of the now well-established principle that the Tribunal’s reasons are not to be approached with an eye keenly attuned to the detection of error (see Wu Shan Liang and also the recent observations of Flick J in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 61 AAR 531 at [19]-[20] (with whom Katzmann and Wigney JJ relevantly agreed)).”
The failure on the part of the Authority to consider the contents of the 9 January 2019 letter and the accompanying statutory declaration was not material, in the sense that had it considered such content, it could not realistically have resulted in the Authority arriving at a different decision. It had already rejected the applicant’s LTTE claims. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
It ought not to be inferred that the Authority’s failure to consider the material was other than intentional. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
There is no merit to Ground 1 of the Amended Application for Review.

Ground 2

As to Ground 2 of the Amended Application for Review, such ground is based upon the premise that the appointment of a former leader named Rajapaksa as opposition leader in Sri Lanka was of such significance that the Authority ought to have considered the hyperlink material recorded in the 9 January 2019 letter. There is no merit to such claim.
Section 473FB of the Act made provision for the issuing of practice directions governing the operations of the Authority. Section 473FB(5) of the Act provided that the Authority need not accept new information or documents which did not comply with any relevant practice direction.
Paragraphs [30] and [33] of the Authority’s Practice Direction Number 1 dated 17 December 2018 respectively provided as follows:
“30. If you provide or refer to new information such as country information reports or media articles, you must:
·attach a copy of that information or an extract of the part(s) of the information on which you rely, and
·identify the source of the information.
Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.
…
33. At our discretion, we may decide not to accept new information that does not comply with these requirements.”
There were sound practical grounds for it being provided in the Practice Direction that any new information in the nature of country information must be provided to the Authority in hard copy. The provision of hyperlinks to the Authority by the applicant’s representative was not considered as acceptable. It was important for the Authority to be satisfied that any material provided to it was bona fide, and a part of that consideration was the requirement that appropriate sourcing of content was able to be established. The material provided, both in terms of the hyperlinks provided and the submissions made in the statutory declaration under the heading “New Information – Political Situation in Sri Lanka”, were neither sourced, referenced or clearly articulated. A decision maker is only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
The Authority dealt with the issue at [8] and [9] of its reasons as follows:
“[8] In the IAA submission, the representative referenced a 2018 Human Rights Watch (HRW) and a 2018 International Crisis Group (ICG) report, plus several hyperlinks to other information, which appear to have been provided as evidence of the political situation in Sri Lanka. The representative states the country information referred to in the submission was not provided prior to the delegate’s decision because it seeks to evidence events that transpired both prior to and after the date of the decision. He states that exceptional circumstances exist for considering the country information because the delegate ‘relied heavily on country information that indicated that the political situation in Sri Lanka was improving for Tamils which is now clearly not the case’. While neither the HRW or the ICG report (or extracts) have been provided, I note both reports were published prior to the delegate’s decision of 6 December 2018. In this context, I am not satisfied that this information reports on changes to the political landscape in Sri Lanka post 6 December 2018. I am also not satisfied that this information could not have been provided to the Minister before the delegate made her decision. Further, the provision of hyperlinks does not comply with the requirements set out in the IAA Practice Direction (provided to the representative on 19 December 2018) under s.473FB that states that if an applicant provides or refers to new information such as country information or media articles they must attach a copy of that information or extract part(s) of the information on which they rely and must identify the source of the information. Hyperlinks to publicly available documents are not acceptable. As noted above, neither the HRW nor ICG reports/ extract(s) have been provided. Further, it is not clear as to which parts of the IAA submission that the HRW and ICG reports refer. I find that Practice Direction 1 has not been complied with and under s.473FB(5) I have decided to not accept this new information.
[9] The applicant’s representative has also provided what appears to be unreferenced country information under the heading ‘Changing political situation’ where he refers to events in Sri Lanka in October 2018 and January 2019. The applicant appeared to refer to similar unreferenced country information in the IAA statement under the heading ‘New information– political situation in Sri Lanka’. He claimed that he did not provide the information earlier because the situation was changing rapidly. As above, I find that Practice Direction 1 has not been complied with and under s.473FB(5) I have decided to not accept this new information. Even if I did, given the lack of a source and that the information is generally lacking in probative value in assessing the applicant’s claims before the delegate, I would not be satisfied that exceptional circumstances existed that justified considering the information.”
No error has been established on the part of the Authority as to the manner in which it failed to accept the hyperlink references set out in the 9 January 2019 letter. It was not obliged to accept the proffered material in the event of non-compliance. By reason of its lack of source verification, and further in the light of the Authority having described the material as “generally lacking in probative value”, the Authority was satisfied that there were no exceptional circumstances justifying its consideration. In the light of the Authority not referencing the provisions of s. 473DD of the Act when so making that finding, the Court infers that the Authority so exercised its discretion not to accept it pursuant to paragraph 33 of the Practice Direction.

Further, the Court further infers that the Authority’s failure to refer to Mr Rajapaksa in its reasons was because it did not consider the applicant’s reference to Mr Rajapaksa being appointed leader of the opposition was either relevant or material. It was open for the Authority to consider that the leader of the opposition in Sri Lanka would have no relevant influence upon government policy. It was also open for the Authority to consider that the references to Mr Rajapaksa in the submission and the accompanying statement were not sufficiently clearly articulated so as to enable the Authority to consider whether or not there was, because of such alleged change in political situation, a real chance of the applicant suffering serious harm, or a real risk of the applicant suffering significant harm, should he be returned to Sri Lanka. The Court infers that the Authority considered that no purpose would have been served by the Authority considering the fact of the appointment of a new opposition leader in such context.
Even if the Authority was procedurally unfair to the applicant in failing to open, read and consider the hyperlink material, or the other submissions made either in the letter or the accompanying statutory declaration, such failure would not have been material in any event, firstly in the light of the Authority’s findings that the applicant had no relevant LTTE involvement, and secondly because country information accepted by the Authority was to the effect that there had been a marked recent improvement in Sri Lanka relating to the welfare of Tamils. [14]
[14] Paragraphs [41] – [46] inclusive of Authority’s reasons at CB pp. 204 – 206.
The Authority clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions on the same or similar facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The grounds for review are without merit and are dismissed.
The Court will hear the parties as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 16 September 2020