Aok19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 822
•21 July 2021
FEDERAL COURT OF AUSTRALIA
AOK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 822
Appeal from: AOK19 v Minister for Immigration & Anor [2020] FCCA 2579 File number: SAD 149 of 2020 Judgment of: CHARLESWORTH J Date of judgment: 21 July 2021 Catchwords: MIGRATION – appeal from order dismissing an application for judicial review of a decision of the Immigration Assessment Authority – Authority failing to have regard to information contained in documents provided to it – Authority mischaracterising the information as “new information” for the purposes of s 473DD of the Migration Act 1958 (Cth) – primary judge erroneously concluding the Authority’s error was immaterial – erroneous conflation of claims based on perceived political opinion with claims based on actual political opinion Legislation: Migration Act 1958 (Cth) ss 5H, 36, 65, 473DC, 473DD, 474 Cases cited: AOK19 v Minister for Immigration & Anor [2020] FCCA 2579
CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477
CVK v Minister for Immigration and Border Protection (2017) 257 FCR 297
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 42 Date of hearing: 12 May 2021 Counsel for the Appellant: Mr C Jacobi Solicitor for the Appellant: Dentons Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
SAD 149 of 2020 BETWEEN: AOK19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 16 September 2020 be set aside and in lieu thereof there be orders that:
(a)the decision of the Immigration Assessment Authority be quashed; and
(b)a writ of mandamus issue directing the Immigration Assessment Authority, differently constituted, to determine the review of the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs according to law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
This is an appeal from orders of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority.
The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia on 19 July 2013. On 27 January 2017, he lodged an application for a Class XE Subclass 70 Safe Haven Enterprise visa (SHEV) under the Migration Act 1958 (Cth). That application was refused by a delegate of the then named Minister for Home Affairs. The delegate’s decision was automatically referred for review by the Authority under Pt 7AA of the Act.
In support of the visa application the appellant made a series of claims relating to his former involvement with the Liberation Tigers of Tamil Eelam (LTTE). The claims were advanced first in a statement annexed to the SHEV application, then in a statutory declaration made on 22 October 2018, in an interview with the delegate, then in a further statutory declaration made on 10 January 2019 and provided to the Authority by his migration agent under the cover of a letter dated 9 January 2019.
The latter two documents were not before the delegate. The particular claim relevant to this appeal may be referred to as the “perceived opinion claim”. It is to the effect that in 2013 an informant for the Sri Lankan Authorities (here referred to as “S”) had identified him as having had a greater level of involvement with the LTTE than he in fact had. On that premise, the appellant claimed to have a well-founded fear that if he were to be returned to Sri Lanka he would be persecuted because of a political opinion (wrongly) imputed to him.
The Authority’s powers to receive and consider new information is limited by s 473DD of the Act. The Authority characterised the material in the migration agent’s letter and the accompanying statutory declaration relating to the perceived opinion claim as “new information” for the purposes of s 473DD and determined not to consider it. In applying s 473DD of the Act, the Authority said that the “new information” was not credible because it differed from that which had previously been provided to the delegate about the informant S.
In the proceedings before the primary judge, the onus was on the appellant to show that the Authority’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, Gaudron, McHugh, Gummow, Kirby and Hayne JJ (at [83]); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, French CJ, Bell, Keane and Gordon JJ (at [24]). Relevantly, the appellant argued that the Authority had wrongly characterised the perceived opinion claim as constituting “new information” and so committed jurisdictional error by failing to consider and determine it.
In a finding favourable to the appellant, the primary judge concluded that the content of the 9 January 2019 letter and accompanying statutory declaration was not new information, but rather a “refinement” of claims the appellant had previously made in support of the SHEV application: AOK19 v Minister for Immigration & Anor [2020] FCCA 2579 at [26]. The primary judge went on to say that the Authority’s erroneous characterisation of the information as “new” did not materially affect the outcome of its review because the Authority had concluded, on the material before it, that the appellant did not in fact have any significant involvement with the LTTE in any event. The primary judge said that consideration of the information could not realistically have resulted in the Authority arriving at a different decision, such that the Authority’s failure to consider the information could not properly be characterised as a jurisdictional error.
ISSUES
The single ground of appeal is as follows:
The learned Circuit Judge erred in law in not finding jurisdictional error in the decision of the Second Respondent (IAA) dated 7 February 2019 (IAA’s decision) for failing to consider his claims, as the IAA is required to do, because the IAA ‘erroneously regarded itself as not permitted to consider ‘claims’ (or submissions) under s473DD and thereby failed to consider claims/submissions made by the applicant…’ (Ground 1 of Amended Application filed in the Federal Circuit Court on 14 August 2020 (Amended Application)).
The particular subject matter of this ground is the information set out at [8] and [15] of the appellant’s statutory declaration made on 10 January 2019 and so relates to a narrower range of subject matter than that raised before the primary judge in the first ground of judicial review.
The Minister does not seek to defend this appeal for all of the reasons given by the primary judge in respect of the perceived opinion claim. Including by a notice of contention, the Minister submits:
(a)The information set out at [8] and [15] of the appellant’s statutory declaration … is properly characterised as ‘new information’ as defined in s 473DC(1) of the Act.
(b)The Authority properly considered whether it could take that information into account having regard to the proscription in s 473DD.
(c)Even if the Authority was in error either in its characterisation of the information as new information, or the Authority erred in its consideration of that information under s 473DD, the error was not material to the outcome.
It is convenient to deal first with the contention that the Authority properly characterised the information in question as “new”.
THE MINISTER’S CONTENTION
To be eligible for the SHEV it was necessary that the Minister be satisfied that the criteria for the grant of a visa of that kind were fulfilled: Act, s 65. The appellant relevantly claimed to fulfil an alternative criteria for the grant of a protection visa prescribed in s 36 of the Act, namely that he as a person to whom Australia owed protection obligations because he was a refugee. The word “refugee” is relevantly defined in s 5H of the Act to mean:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
…
For the purposes of Pt 7AA of the Act, the expression “new information” is defined in s 473DC(1) to mean information that was not before the Minister when the Minister made the decision under s 65 of the Act, and that the Authority considers may be relevant.
Section 473DD of the Act provides:
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.
As the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 explained (at [24]), “[t]he 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”. Submissions made to the Authority in connection with information previously provided are not in themselves “information”: Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482, Flick, Griffiths and Perry JJ (at [35]). A review applicant may be permitted to make submissions about factual material relied upon before the delegate, or to characterise that material in a new way that does not amount to new information: CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477, Mortimer J (at [8]). Attempts to draw a distinction between new “information” and a new “claim” may be illusionary or otherwise unhelpful. As McKerracher J reinforced in CVK v Minister for Immigration and Border Protection (2017) 257 FCR 297, a claim does not exist in a factual vacuum.
Here, in identifying whether the subject information before the Authority was or was not before the delegate in the relevant sense, the focus is to be on the appellant’s claimed fear of harm with particular attention to the facts and circumstances on which that state of mind was based.
At the time of the SHEV application and the delegate’s decision, the appellant claimed that he had been forcibly recruited into the LTTE in 2008 during the civil war and that he had subsequently been released after undergoing 10 days of weapons training. He claimed that his cousin had undergone training with LTTE and had been killed in combat and that his family had moved around toward the end of the civil war and had attracted the attention of the Criminal Investigation Department (CID). The appellant claimed that in 2013 he had been detained and physically assaulted at a CID office, that the CID had attempted to force a confession from him about his LTTE involvement and had taken his fingerprints and contact details. The appellant claimed that the adverse attention from the CID precipitated his decision to flee to Australia. In his written statement of claims accompanying the SHEV application, the appellant said:
After I left the country, there were many enquiries to my father by the CID officers. My father is being repeatedly enquired about my whereabouts.
My father informed me over the phone that there is a person called [S] who is in close relationship with the CID officers and working as the informer identifying people with links to LTTE. [S’s] native place is [redacted] and he was living in [redacted] and one of the main persons of PLOTE (The People’s Liberation Organisation of Tamil Eelam (PLOTE) is a former Tamil militant group that had become a pro-government paramilitary group and political party). [S] came to [redacted] in 2013, and working as the informer to CID officers from then. That was the reason why CID officers took me for enquiry in June 2013.
In his statutory declaration made on 22 October 2018 the appellant said:
As [S] has identified me as a LTTE person, the Sri Lankan authorities saw me as a LTTE cadre before I left the country and the authorities will see me as a LTTE cadre if I return back to Sri Lanka (it does not matter that I only had taken weapon training for 10 days). The authorities will see me as a LTTE cadre with full weapon training, who escaped rehabilitation.
The appellant elaborated on these claims in his interview with the delegate. The information he provided in that interview included that summarised in the Authority’s reasons extracted at [35] below.
The information before the delegate plainly required a distinction to be drawn between the degree of support that the appellant had in fact provided to the LTTE and the degree of support he might be perceived to have provided, by reason of reports made about him to the CID by S. The appellant clearly explained that he feared that the CID had interrogated him in 2013 because of the activities of S.
In his statutory declaration dated 10 January 2019 provided to the Authority, the appellant stated (at [7]) that he was not sure what S had told the CID. The declaration continued:
8.On one hand, he may be under the impression that I was with the LTTE from the time I was first taken in 2008 until when I returned in 2010. On the other hand, if he did know that I was released by the LTTE back to my family after three days, he would have assumed the only reason I had been released was because other significant support had been provided that was more important than me actively serving as a member.
…
14.I therefore suspect that my imputed profile is that of a high level member and/or supporter of the LTTE on the basis that:
a.My family are either known or suspected to be strong supporters of the LTTE because I was allowed to be released from my obligation to fight for the LTTE so that I could finish my studies;
b.Alternatively, that I served from the date I was first recruited by the LTTE in 2008 until the end of war.
c.I will be considered to be a combatant with the LTTE who took part, at the very least, in the final armed conflict on the basis that I returned about the time that other LTTE combatants who took part in the final war were also seeking to slip back into civilian life following the defeat of the LTTE;
d.I was the only son of my parents and my sisters were not members or suspected of being members of the LTTE and so I will have been expected to have been a member of the LTTE under the one family member policy; and
e.I fled Sri Lanka after being interrogated and while my LTTE links were beginning to be investigated.
15.However, this is just speculation. I do not know exactly what [S] has told the CID about me and have no way of finding out. All I know is that the CID were treating me as if I was a high level member and/or support of the LTTE. In fact, I suspect that [S] has told them whatever they want to hear given his role as in informer means that the CID require him to continue to give them information, and that there is enough evidence for them to believe the claims given my circumstances. I know that when I was being interrogated by the CID in 2013 I was accused of joining at the same time as my cousin [redacted] in 2008 who served as a combatant with the LTTE which makes me think that they don’t know that I was initially released by the LTTE in 2008.
The written submission of the appellant’s representative alleged that delegate had wrongly conflated the appellant’s “actual profile” with his “potential imputed profile”. The submission stated:
[The appellant] has consistently claimed that it is his imputed or suspected links to the LTTE that are the basis for his fear of returning to Sri Lanka, and that these suspected links are the result of the informer [‘S’]. The details provided regarding his actual involvement was provided to demonstrate the grounds for which a high level of involvement was perceived by the CID. Despite this, the delegate has clearly conflated his actual involvement with the LTTE with his imputed involvement, and failed to consider both [the appellant’s] broader circumstances that may lead to an imputed profile as a high level supporter and/or member of the LTTE and the broad consensus from Country Information that confirms that Tamil’s with imputed or suspected links to the LTTE face persecution irrespective of the evidential basis that forms the suspicion.
The attached statement of [the appellant] clarifies his views as to what [S] may have told the CID about his involvement with the LTTE. [The appellant] acknowledges he can only speculate what [S] has told the CID, but he sets out the circumstances that may lead [S] to forming the view that he was a high-level supporter and/or member of the LTTE.
Under the heading “[n]ew information”, the submission stated that the information contained in the later statutory declaration was provided because it had become clear that the appellant’s claims had been misunderstood by the delegate and that the delegate had failed to consider “a vital integer of his claims, being the nature of the imputed or perceived links to the LTTE”.
In its written reasons (at [5]) the Authority referred to the following information contained in the material that had been provided to it:
bS, an informer working for the Sri Lankan government, may be under the impression that the applicant was with the LTTE from 2008 until 2010
…
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:
…
ii.he is or may be perceived to have been with the LTTE since 2008 due to S; and
…
At [6], the Authority categorised that information as new information for the purposes of its review:
The information and claims above not before the delegate constitutes new information that wholly relate to events that pre-date the delegate’s decision. Neither the applicant nor his representative have provided reasons as to why this information was not and could not have been provided to the delegate or why it may be considered credible personal information. I have taken into account that the applicant was legally represented in terms of preparing his SHEV application and during his interview with the delegate on 8 October 2018 (SHEV interview), and this information not mentioned. Further, there was no mention of these claims or information in the applicant’s post-SHEV interview statutory declaration dated 22 October 2018. In the circumstances, I am not satisfied that this information could not have been provided to the Minister before the delegate made her decision.
The Authority went on to conclude that the information should not be considered, including because it was not “credible”.
As mentioned earlier in these reasons, the primary judge concluded that the Authority was wrong to characterise the information as new. His Honour described the information as a “refinement” of the claims the appellant had previously made in the materials before the delegate.
The primary judge was correct to find that the Authority had erred. The information before the delegate plainly disclosed the factual basis for the claimed fear of persecution as being one founded not only on what the appellant had in fact done to support the LTTE, but what he might be perceived to have done. It is plain that he claimed to fear persecution not only on the basis of his actual profile, but also on the basis of a political opinion that might be wrongly imputed to him by reason of the activities and reports of the informant S. His words were to the effect that the authorities would see him as a high level member and/or supporter of the LTTE, even though his actual involvement with the LTTE had been more limited than that. The appellant’s claimed treatment at the hands of the CID in 2013 was plainly asserted to have resulted from the activities of the informant S.
The appellant’s representative was correct to submit to the Authority that the delegate had failed to consider and determine that aspect of the appellant’s claim. The appellant’s letter and the accompanying statutory declaration constituted a complaint that the delegate had failed to consider the perceived opinion claim. The information contained in those documents was not “new” in the requisite sense.
Accordingly, there was no occasion for the Authority to assess the information against the requirements of s 473DD of the Act. The Minister’s contention to the contrary is rejected.
THE ERROR WAS MATERIAL
For the Authority’s error to be characterised as jurisdictional, it must be shown that there is a realistic possibility that its decision could have been different had the error not been made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell, Gageler and Keane JJ (at [48]).
The primary judge said that the Authority’s failure to consider information (including the content of the submission and statutory declaration before it as now in issue on this appeal) 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.
That conclusion followed from his Honour’s earlier consideration of the manner in which the Authority had dealt with the appellant’s claims to have had some former involvement with the LTTE. The primary judge interpreted that part of the Authority’s reasons as follows:
24.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.
25.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.
As submitted by Counsel for the appellant, the reasoning of the primary judge conflated the political opinion that may be imputed to the appellant on the basis of what he had done with the political opinion that may be imputed to him on the basis of what he may be perceived to have done. Resolution of the former issue against the appellant did not render it unnecessary to consider the latter. There is appealable error in that respect.
On the question of materiality, Counsel for the Minister did not seek to defend the whole of the reasoning of the primary judge. Instead, Counsel argued that the Authority had in fact considered the claim that the appellant may be imputed with the political opinion of a person who had supported the LTTE to a greater degree than he actually had. Counsel submitted that the Authority had “effectively” considered the claims in relation to S (including the imputed opinion claim) in the following passages:
24.The delegate asked the applicant a third time why he had come to the adverse interest of the CID in 2013 in circumstances where the war had ended four years prior. In response, he raised a new claim that he had been detained by the LTTE prior to the end of the conflict. He maintained that he came to the adverse attention of the CID in 2013 because he was identified as a person who was in the LTTE, who he later found out was S. He said that S was taking a salary from the Sri Lankan authorities to identify former LTTE persons.
25.The applicant also advised the delegate that S had identified him to the CID due to the assistance that the applicant’s father provided to the LTTE. He said that the authorities were not interested in his father because he only helped them with vehicles, but that the CID was interested in him because they said he was an LTTE fighter. At this point, the applicant provided further information in respect of the new claim earlier raised that he was detained by the LTTE prior to the end of the conflict. He claimed that:
•He was caught by the LTTE in [redacted] in 2009;
•That he was forced to undergo 10 days of military training, including how to use an AK-47;
•Following training he was taken to the front lines, but as he was new he was positioned in the third line of defence;
•While in battle he threw away his weapon, ran away, and mingled with the general population before finding his parents and entering the army controlled area.
26.In the IAA statement, the applicant states that he did not provide details of his 2009 LTTE involvement prior to the SHEV interview because he was scared what would happen to him if he admitted this. He states that he was advised by his previous lawyer, who assisted him with his SHEV application, that LTTE combatants and those seen as LTTE terrorists can be refused visas in Australia and either locked up forever or sent back to Sri Lanka. However, I have difficulty accepting this explanation given his earlier evidence in the arrival interview that he had never received training in preparation for conflict and had never participated in armed conflict or fighting. I also note that he made no mention that he was detained or trained by the LTTE in 2009, that he fought in the war, or that he was threatened with death by the CID. I also find the applicant’s evidence in the arrival interview that he started to make arrangements to leave Sri Lanka in May 2013, prior to his claimed interactions with the CID in June 2013, not insignificant. I note that the IAA provided the applicant’s representative an audio recording of the arrival interview on 19 December 2018 in response to a request to disclose information.
27.In support of his claims, the applicant provided a letter, dated 10 October 2018, from N.Nageswaran, Justice of the Peace. The letter was obtained after the SHEV interview. The letter stated that the applicant’s father approached him in 2013 and told him that his son had been taken to the [redacted] CID camp and tortured. He was accused of being a member of the LTTE. The letter also states that the applicant’s father has been questioned a number of times by investigation and security officers, including by S.
28.In the IAA statement, the applicant states that he has only speculated as to what S may have told the CID about his LTTE involvement.
29.When considered cumulatively, the above evidence leads me to conclude that the applicant was not recalling a genuine personal experience in relation to certain events that transpired between 2009 and 2013. I consider that if it were true that the applicant had been forcibly recruited and trained by the LTTE in 2009, and fought in the war, that he would have mentioned such a material claim in his SHEV statement, prepared with the assistant [sic] of a legal representative. I do not accept that the applicant failed to mention these claims earlier on the advice of his former representative. I also find it difficult to accept the applicant’s claim that his father was identified as a person who provided support to the LTTE but was never questioned directly in relation to this. Country information in the review material indicates that it was not just former LTTE fighters who were of interest to the Sri Lankan authorities following the conflict, but others including those who provided low-level support and family members of cadres. Further, I expect that if the applicant had been taken into CID custody in June 2013 after being identified as a former LTTE fighter by an informant paid by the authorities to identify such persons, and told that he was suspected of being a LTTE fighter, that he would not have been released the same day. In light of the evidence discussed and due to the prevalence of document fraud in Sri Lanka I give the letter purportedly issued from N.Nageswaran no weight. Having regard to the information before me, I am not satisfied that the applicant was forcibly recruited and trained by the LTTE in 2009. It follows that I reject his associated claims that he fought in the war alongside the LTTE, and that he has been identified as a former LTTE cadre by the Sri Lankan authorities on this basis.
(Emphasis added)
Counsel for the Minister placed significant emphasis on the concluding emphasised passage. It was submitted that the Authority should be understood to have there addressed the distinction between the imputation of an opinion founded on actual events on the one hand and perceived events on the other, and to have rejected both claims. I do not accept that submission for five reasons.
First, the emphasised passage must be understood as a conclusion following from the words preceding it. The preceding passages (particularly the penultimate sentence of [29]) were concerned with the appellant’s claim that he had in fact been forcibly recruited and trained by the LTTE in 2009, a claim the Authority rejected. The words “on that basis” are to be understood as a reference to the appellant’s claim that he had in fact fought in the civil war alongside the LTTE.
Second, to the extent that there is ambiguity in the expression of the Authority’s reasons, I am not prepared to draw the inference that the Authority was there intending to express a conclusion in respect of the perceived opinion claim. That is because the Authority had earlier identified in its reasons that it would not have regard to the particular material it summarised at [5] of its reasons. As can be seen from the passage extracted at [24] above, the excluded material included the claim concerning what the CID might perceive him to be, based on information provided by S. The remainder of the reasons should be interpreted in that context.
Third, the information referred to at [27] of the Authority’s reasons as contained in the “IAA statement” is not the same information forming the subject matter of this appeal. On its terms, that passage is to be understood as referring to an explanation the appellant had given for not raising certain information in his interview with the delegate at a time earlier than that interview. To the extent that the Minister contended that the Authority specifically referred to and considered the material at [8] and [15] of the appellant’s statutory declaration dated 10 January 2019 at [27] of its reasons, that submission is rejected.
Fourth, the reference at [28] to the appellant only speculating about what S may have told the CID about his LTTE involvement is not followed by any meaningful intellectual engagement with the question of whether the appellant may be wrongly perceived by the CID as having been an LTTE cadre, whether or not he had been an LTTE cadre in fact.
Fifth, a proper assessment of the appellant’s claim to be a refugee required that an assessment be made of all of the information before the Authority, considered together. In my view, had the perceived involvement claim been properly understood and grappled with, there is at least a possibility that the Authority might have found that the appellant’s detention and questioning in 2013 did in fact occur. The Authority’s finding that the event did not occur cannot provide the foundation for a non-materiality argument if the ignored information bore some relevance in determining that very issue. It is notable that the delegate accepted the appellant’s claims concerning his detention and questioning in 2013 but the Authority did not. That aspect of the appellant’s claims could not be said to have been inherently implausible, nor can it be said to be factually insignificant. If the consequences of perceived involvement with the LTTE had been properly considered, there was a realistic possibility that the outcome might have been different.
It follows that the appeal should be allowed. The parties should be heard as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 21 July 2021
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