Aqx18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2019] FCCA 3331

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQX18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2019] FCCA 3331

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority considered all claims – whether Immigration Assessment Authority’s finding were open to it – whether Immigration Assessment Authority erred in failing expressly to address a request by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB,

473CC, 473DA, 473DB, 473DC, 473DD, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth [2003] HCA 2

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018]

HCA 16

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC

107

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

SZTZY v Minister for Immigration and Border Protection [2018] FCA 911

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

ASB17 v Minister for Home Affairs [2019] FCAFC 38

BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant:

AQX18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 379 of 2018

Judgment of:

Judge Emmett

Hearing date:

11 November 2019

Date of Last Submission:

11 November 2019

Delivered at:

Sydney

Delivered on:

21 November 2019

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitor for the Respondents:

Mr Liam Dennis
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 379 of 2018

AQX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 19 January 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 23 March 2017 refusing the applicant a Safe Haven Enterprise (Class XE) visa (“SHEV”).
The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the authorities and paramilitary groups in Sri Lanka.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a SHEV, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.

Background

The applicant arrived in Australia on 26 May 2013 as an irregular maritime arrival having departed from Sri Lanka.
On 19 September 2016, the applicant lodged an application for a SHEV with the Department of Home Affairs (“the Department”).
On 23 July 2017, the Delegate refused the applicant’s application for a SHEV.
On 28 March 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.
On 19 January 2019, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.
On 14 February 2018, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth [2003] HCA 2).
Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“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.”

The applicant’s application for a SHEV

The applicant’s claims for protection before the Authority, taken individually and cumulatively, were as follows:
i)The applicant will face persecution at the hands of the Sri Lankan authorities and the paramilitaries.
ii)The applicant is a young Tamil male from an area which was under the control of the LTTE at the relevant times.
iii)The applicant has strong familial links to the LTTE by reason of the connection of his brothers, N and S, with the LTTE. N was abducted and is missing and S was arrested, detained and charged under the Prevention of Terrorism Act.
iv)The applicant’s breach of his bail and his reporting and signing conditions.
v)The applicant’s return as a failed asylum seeker who departed illegally twice with the above claimed profile. Having departed Sri Lanka illegally twice, the applicant will be given the maximum punishment under Sri Lankan immigration laws and he will be imprisoned without bail or a simple fine. Sri Lanka is known for its inhumane prison conditions.
vi)The applicant testified before the Lessons Learnt and Reconciliation Commission (“LLRC”) identifying the Special Task Force (“STF”) members who abducted N, thereby making him an eye witness to war crimes or crimes against humanity and exposing him to extreme danger from the STF who had warned and tortured him in the past.

The Delegate’s decision

On 16 February 2017, the applicant attended an interview with the Delegate.
The Delegate summarised the applicant’s claims for protection, both written and those provided at interview.
The Delegate made various findings of fact which are summarised, as follows:
a)The applicant is a Tamil of Hindu religion from Batticaloa in the Eastern Province of Sri Lanka.
b)The applicant’s brother N’s provided low-level assistance to LTTE and has been missing since March 2009.
c)Following N’s abduction/arrest, the applicant’s older brothers were arrested and interrogated by the Sri Lankan authorities regarding their connections and associations with the LTTE.
d)The applicant’s brother, K, departed Sri Lanka after 3 years, in 2012. He arrived in Australia for the purpose of seeking asylum.
e)The applicant has real or perceived links to the LTTE, which the authorities have been interested in investigating due to his connection to his missing brother N.
f)The applicant has faced problems and/or fears harm on return due to his brother N’s disappearance.
g)The applicant fears harm on the basis of his Tamil ethnicity if he is returned to Sri Lanka.
h)The applicant departed Sri Lanka illegally by boat, without permission and a passport.
i)The applicant will be considered a failed asylum seeker on his return to Sri Lanka.
The Delegated accepted that the applicant’s brother, N, provided low-level assistance to the LTTE and has been missing since March 2009. The Delegate also accepted that the applicant has real or perceived links to the LTTE that the Sri Lankan Army were interested in investigating, due to this connection to his brother N. However, the Delegate did not accept that the applicant has an actual or imputed pro-LTTE political opinion as a result of this.
The Delegate assessed the applicant as a Tamil from a former LTTE-controlled area. The Delegate had regard to country information on this issue. Noting the improved situation in the East of the country and noting that the applicant did not have real or perceived links to the LTTE, the Delegate found the chance of him facing persecution for this reason to be remote.
The Delegate considered whether the applicant’s Tamil ethnicity would of itself lead to an imputed association with the LTTE and after considering country information, concluded that it would not. The Delegate found that the applicant was of no interest to the Sri Lankan authorities for any reason when he left the country.
The Delegate considered the applicant’s chances of harm for being a failed Tamil asylum seeker who departed Sri Lanka illegally. The Delegate took into account country information contained in a Department of Foreign Affairs and Trade report that provided information on returned asylum seekers. The Delegate found that the applicant did not hold a well-founded fear of persecution on account of being a failed Tamil asylum seeker who departed Sri Lanka illegally.
The Delegate had regard to the applicant’s claims cumulatively as well as individually and found that there was not a real chance the applicant will be subject to serious harm on his return to Sri Lanka.
On 23 March 2017, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant did not satisfy the Convention criteria in s.36(2)(a) of the Act and did not meet the alternative complementary protection criterion in s.36(2)(aa) of the Act.

The Authority’s review and decision

On 28 March 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.
The applicant’s representative provided further documents to the Authority in support of the applicant’s review. These documents included a submission from the applicant’s representative dated 18 April 2017; an affidavit of the applicant dated 23 April 2017; various bundles of documents both translated and untranslated; country situation reports; and, a letter from the International Committee of the Red Cross. Some of these materials comprised new claims that were not made before the Delegate. The Authority noted the new claims, the supporting documents and the country information that were not before the Delegate were new information.
The Authority’s decision is accurately summarised in the submissions of the first respondent as follows:
“IAA DECISION
New information
8. The IAA had regard to the review material provided by the Secretary under section 473CB of the Act (CB 317: [2]). The IAA also referred to the emails and documents received by the applicant's representative on each of 18, 26 and 31 April 2017 (CB 317: [3]).
9. To the extent that the applicant's submissions provided on 18 April 2017 discussed evidence which was before the delegate and responded to the delegate's decision based on that material, the IAA did not consider that new information and had regard to it (CB 317: [4]).
10. The IAA noted that the remaining material provided by the representative consisted of new claims, supporting documents and country information that were not before the delegate and was therefore ‘new information’ (the new information) (CB 317: [5]).
11. The IAA considered the three new claims raised in the submissions, being that (CB 317: [6]):
(a) the locations at which his brother S was detained after his arrest, and that he was released on bail with conditions to report weekly and sign in at Batticaloa police station and not leave the country;
(b) his brother N assisted the LTTE by providing funds and helping the LTTE intelligence unit, N was an agent who spied and gave information to higher officers in the LTTE intelligence unit, and the applicant helped N; and
(c) the applicant made a prior attempt to leave Sri Lanka by boat (on or about 15 November 2012) as he feared harassment, torture and danger to his life. The boat was intercepted and he was returned. The applicant was arrested, charged and bailed, but missed subsequent court dates relating to those charges. His mother informed him that unidentified people came to the house inquiring about him in a threatening manner, which prompted him to depart Sri Lanka for a second time.
12. In relation to these new claims, the applicant submitted that these were relevant facts that, in the eyes of the Sri Lankan authorities, would strongly link the applicant and his brothers to the LTTE (CB 317-318: [7]). He did not raise these claims previously as he was advised his claim for protection would be rejected on security grounds (CB 317-318: [7]). The applicant did not identify who gave him that advice (CB 317-318: [7]).
13. The IAA noted that the applicant had been represented by a solicitor and registered migration agent at the time of the SHEV application and did not accept that his agent would give him such advice (CB 317-318: [7]). Further, the IAA considered this explanation to be inconsistent with the applicant's evidence at the SHEV interview that S had been detained under the PTA (CB 317-318: [7]). The IAA also noted that it was not apparent how his claimed first attempt to leave Sri Lanka would link him or his brothers to the LTTE (CB 317-318: [7]).
14. The IAA then considered the supporting documents set out at paragraph 5 above. The IAA noted that these documents predated the delegate's decision, with the exception of the affidavit dated 23 April 2017, which related to documents that date from at least 2015 (CB 318: [8]).
15. The IAA noted that the applicant was represented and had provided some documents to the delegate (CB 318: [9]). Further, the new claims predate the delegate's decision, and the applicant was made aware of the importance of submitting all documents to the delegate before a decision was made (CB 318: [9]). That decision was made five weeks after the SHEV interview (CB 318: [9]).
16. The delegate accepted that the new claims were 'personal information' but had concerns about the credibility of those claims and supporting documents, specifically because the applicant had not raised such significant matters earlier (CB 318-319: [10]). The IAA also noted that there were issues with the supporting court documents that cast doubt on their authenticity, and that country information suggested that document fraud is prevalent in Sri Lanka (CB 318-319: [10]).
17. The IAA also considered the new country information provided by the applicant's representative, which consisted of four reports (CB 320: [12]).
18. In relation to the new claims, the supporting documents and the country information, the IAA was not satisfied that this new information was not and could not have been provided to the delegate, or was personal credible information which was not known and if it were may have affected the consideration of the applicant's claims (CB 320: [11]-[12]). The IAA was not satisfied that there were exceptional circumstances to justify considering any of the new information (CB 320: [11]-[12]).
The applicant's claims
19. The IAA found that the applicant was generally consistent about the adverse attention he and his family had received from the Sri Lankan authorities, especially the STF, as well as his family, education, work and residential history (CB 323: [26]). It noted that his claims were largely supported by a range of documents and were not inconsistent with country information (CB 232: [26]). Accordingly, the IAA accepted the applicant's claims except as follows (CB 323: [26]):
(a) The IAA noted inconsistencies and credibility issues in the applicant's evidence concerning his brother S, including concerns in relation to the documentary evidence he provided in support (CB 323-324: [27]). As a result, the IAA was ‘satisfied that the applicant exaggerated and embellished his evidence to boost his protection claims’ (CB 324: [28]).
(b) The IAA rejected the applicant's claims that S had lodged a complaint about N's disappearance in 2009, that S had been detained and beaten in 2009 because he lodged this complaint, that the STF/CID asked S to attend an inquiry in September 2013, that S was in hiding in Trincomalee from 2013 to 2015 or under video surveillance, that S was arrested in June 2015, that a detention notice was issued against him, and that he was detained and tortured for a period from 2015 to 2016 (CB 324: [28]). The IAA did not accept that the Sri Lankan authorities searched his mother's house, assaulted his mother, asked about the applicant's whereabouts, or took away his university ID and Australian phone number in July 2015 (CB 324: [28]).
(c) The IAA did not accept that after N's abduction the applicant and his family were questioned, detained or mistreated in relation to N's suspected LTTE links, nor that the applicant received anything other than low level harassment (CB 329-330: [47]). The IAA was not satisfied that the STF had shown any interest in the applicant or his family members since the applicant left in April 2013 (CB 329-330: [47]).
20. The IAA considered the applicant's claims individually and cumulatively, and was ‘satisfied that the applicant would not face a real chance of persecution due to any links to the LTTE, any imputed political opinion, for pursuing N's abduction, haven given evidence to the LLRC or as a young Tamil male from the east if returned to Sri Lanka’ (CB 330: [50]). Nor was the IAA satisfied that the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker (CB 332: [65]).
21. The IAA accepted that the applicant may face some non-discriminatory penalties by reason of having departed Sri Lanka illegally. However, after considering the applicant's circumstances and profile as a whole in the context of country conditions in Sri Lanka, the IAA was ‘not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, or that he has a well-founded fear of persecution within the meaning of section 5J’ of the Act (CB 332-333: [66]). Accordingly, the IAA found that the applicant did not meet the definition of a refugee in subsection 5H(1) of the Act, or the criterion in paragraph 36(2)(a) of the Act (CB 333: [67]).
22. The IAA considered the complementary protection criterion against the applicant's circumstances ‘both individually and cumulatively’ (CB 334: [74]). For the same reasons, the IAA was not satisfied that there were 'substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm' (CB 334: [75]). As a result, the applicant was not found to satisfy paragraph 36(2)(aa) of the Act (CB 334: [75]).”

The proceeding before this Court

The applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter.
On 12 March 2018, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.
The applicant confirmed that he relied on the grounds contained in the Application filed, on 14 February 2018, as follows:
“Ground 1
The Second Respondent committed jurisdictional error by failing to consider or making a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.
Particulars:
a) The applicant’s claim of breaching the Court bail, failure to appear in the Court and the consequences that could arise in his return.
b) Although the IAA stated that the applicant testifying before Lessons Learnt and Reconciliation Commission (LLRC), there is no finding for his claimed fear.
b) Realistic findings of Cumulative consideration of the applicant's claims. The Second Respondent made Jurisdictional Error by failing to make inquiries.
Ground 2
The Second Respondent made Jurisdictional Error by failing to make inquiries.
Particulars
The applicant’s representative stated in his submission that “We are instructed by the applicant that the said documents are genuine. We respectfully request that you kindly use your good offices and check the authenticity of the documents through the Australian High Commission in Colombo”.
All the genuine corroborating Court documents were rejected on the basis of that country information suggesting document fraud is prevalent in Sri Lanka.”
(Errors in original)
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
At the request of the solicitor for the first respondent, I gave leave to the parties to file further submissions in relation to Ground 2 by 5:00pm the next day. The applicant told the Court that he did not propose to file any further document. The first respondent filed further submissions in accordance with that leave and they have been considered below.

Ground 1

In support of Ground 1, the applicant said that when he was coming to Australia he was arrested, that he had evidence of his arrest and summons to the court in Sri Lanka. The applicant said that the Authority did not pay any attention to this claim. The applicant said there was an arrest warrant in effect that was issued in 2012. The applicant said that he told the Authority that he was summoned by the court in Sri Lanka and that he had given evidence of his arrest by authorities in Sri Lanka when attempting to come to Australia. The applicant said that his arrest warrant was served on his mother after he had left Sri Lanka. The applicant said he was a witness before the LLRC and gave evidence identifying the person who arrested him. The applicant also stated that he had not attended court in Sri Lanka which resulted in an open warrant being issued against him with the result that the applicant would have problems on his return. The applicant said another person that came on the boat with him was given a SHEV.

Ground 1(a)

Ground 1(a) asserts that the Authority failed to consider the applicant’s claim of breaching court bail, failing to appear in court in Sri Lanka and the consequences that could arise on his return.
The Authority referred to a submission received from the applicant’s representative on 18 April 2017. That submission made further claims in the following terms:
“In addition we are instructed by the applicant as follows;
Unable to bear the repeated harassment and torture and fearing danger to his life and liberty, the applicant did attempt to flee SL by illegal boat from a coast near Batticaloa. Unfortunately the boat was intercepted by the SL Navy in mid sea off the coast of Batticaloa. He was brought to Trincomalee and detained in the naval camp for three days, produced in the Trincomalee Court by the police and released on bail after a week. Meanwhile he was photographed and finger printed by the Police.
On being released, fearing further persecution, he did not return home but went and remained in the Eastern Universities Kallady campus hostel. He did not report to Court on the next hearing date. He remained at the campus, because the police and other authorities, at that period of time, as a general rule, refrained from raiding and or arresting inmates owing to fear of creating student unrest and political upheavals. Besides, the police had nothing to suspect that he would be hiding there.
Later in April 2013 his mother informed the applicant over the phone that that some unidentified people had come to the house inquiring for him in a threatening manner. Again fearing danger to his life and liberty, the applicant fled SL in a people smuggler’s boat for the second time, this time successfully.
The applicant did not disclose this earlier because of fear. Documents in support are awaited from SL.”
That submission was accurately summarised by the Authority as follows:
“…Thirdly, the applicant now claims that, unable to bear the repeated harassment and torture and fearing danger to his life and liberty, he attempted to flee Sri Lanka illegally by boat from the coast near Batticaloa. Unfortunately the boat was intercepted by the Sri Lankan Navy (SLN) off the coast, he was brought to Trincomalee Court by the police, and released on bail after a week. Meanwhile he was photographed and fingerprinted by the police. On release, fearing further persecution, he did not return home but went and remained in the Eastern University Kallady campus hostel. He did not report to the Court on the next hearing date. Later in April 2013 his mother informed him by phone that unidentified people came to the house inquiring about him in a threatening manner. Again fearing danger to his life and liberty, the applicant fled Sri Lanka in a people smuggler’s boat for a second time, this time successfully. Supporting documents were supplied.”
The Authority noted the applicant’s submission in relation to the new claims. The Authority noted that they were relevant facts that in the eyes of the Sri Lankan authorities strongly linked the applicant and his brothers to the LTTE. The Authority noted that the applicant said that he had not previously disclosed those claims because he had been advised that this would result in his claim for protection being rejected outright on security grounds. The Authority then noted that the applicant had not identified who gave him such advice or when he received it and rejected that explanation. The Authority identified other issues in relation to that explanation and, ultimately, did not accept the applicant’s stated reasons for not disclosing the new claims earlier.
The Authority noted that the new claims pre-dated the Delegate’s decision; that the applicant had been represented when preparing his SHEV application; that at the SHEV interview the Delegate had explained to the application that it was extremely important that he provide complete, accurate and personal protection claims as soon as possible; and, if his application was refused he may not have another chance.
The Authority also noted that the Delegate explained that it was the applicant’s responsibility to raise his protection claims and provide sufficient evidence to establish those claims. The Authority noted that the Delegate asked the applicant if there was anything he wanted to add or change in his application and that the applicant had mentioned only a few errors with some dates.
The Authority noted that at the end of the Delegate’s interview, the applicant confirmed that he had put forward all his claims. The Authority noted that the Delegate informed the applicant that if he provided further information prior to a decision being made, it would be considered. The Authority noted that the SHEV interview was held on 16 February 2017 and that the Delegate’s decision was made some 5 weeks later on 23 March 2017.
The Authority accepted that the new claims were personal information but identified various concerns that it had about the credibility of the applicant’s new claims and supporting documents. The Authority noted that although the applicant now claims that he was arrested and charged for an attempted illegal departure, his sworn evidence at the SHEV interview was that he had never been charged while in Sri Lanka.
The court documents supplied by the applicant to the Authority in support did not relate to any charges against the applicant. Rather, they related to 2 charges against people smugglers with the applicant’s name appearing in a schedule to the charges and a list of witnesses. Further, the applicant had not given any details about when he made his first attempt to leave Sri Lanka.
The applicant said he was held for 3 days by the Sri Lankan Navy then by the police for a week before he was bailed and then he went to live at the university. The Authority noted that his previous consistent evidence was that he lived at the university accommodation from June 2012. However, the period for the offence specified in the documents was from November 2012 to February 2013.
The Authority also noted that the applicant had also provided a number of documents in Tamil/Sinhala in relation to court proceeding but without explanation and did not provide English translations of all the pages submitted. The Authority also noted that country information before it suggested that document fraud is prevalent in Sri Lanka.
Ultimately, the Authority was not satisfied that the applicant’s new information in the form of new claims and supporting documents could not have been provided to the Delegate or that it was credible personal information that was not known and, had it been known, may have affected the consideration of the applicant’s claims. The Authority was not satisfied that there were exceptional circumstances to justify its consideration of the claims.
What will amount to exceptional circumstances is inherently incapable of exhaustive statement (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16). As was held in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, consideration in many cases of the factors in s.473DD(b)(i) and/or (ii) of the Act may assist the Authority in deciding whether exceptional circumstances exist. Whether those factors have a bearing upon the ultimate decision will depend on the facts of the particular case.
Section 473DD of the Act provides that the Authority must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify considering the new information and the applicant satisfies the Authority that it was information that was not and could not have been provided to the Delegate; or is credible personal information which was not previously known; and, had it been known, may have affected the consideration of the applicant’s claims.
The Authority’s findings make clear that it was not satisfied of any of those factors in s.473DD of the Act in considering the applicant’s new information.
The Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. The Authority’s findings were probative of the issues before it, were rational and not without an intelligible foundation. The Authority’s decision record makes clear that it discussed its concerns regarding the new information with the applicant and noted the applicant’s responses. The Authority was not required to accept those explanations and its reasons for rejecting them were logical, reasonable and open on the material and evidence before it (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
In relation to the assertion in Ground 1(a) that the Authority failed to consider the consequences that could arise for the applicant on return to Sri Lanka, a fair reading of the Authority’s decision record does not support such an assertion. The Authority had regard to Department of Foreign Affairs and Trade information and accepted that some asylum seekers with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. However, the Authority found the applicant was of only low-level interest when he left Sri Lanka and that the authorities have not shown any interest in the applicant or his family since that time.
The Authority gave detailed consideration to what may happen to the applicant upon his return and accepted that the applicant may be subjected to non-discriminatory laws but that they will not constitute persecution. In light of the Authority’s finding that the applicant does not have a profile that would make him of adverse interest to the authorities, the Authority did not accept that the applicant was at risk of serious harm on his return as a failed Tamil asylum seeker from Australia and therefore did not meet the Convention criteria in s.36(2)(a) of the Act.
The Authority considered whether the applicant met the complementary criterion in s.36(2)(aa) of the Act and was not satisfied that the applicant faced a real risk of significant harm having regard to his circumstances individually and cumulatively. The Authority concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia there is a real risk that the applicant would suffer significant harm and, therefore, concluded that the applicant did not meet the complementary criterion.
Those findings were open to the Authority on the evidence and material before and for the reasons it gave. The Authority’s findings were probative of the issues before it. The findings were comprehensive, logical and extensively referred to the material before the Authority and, accordingly, were not without an intelligible justification. Bearing in mind that judicial review applicants carry the onus of proof, a finding that a decision maker has not engaged in an active intellectual process will not likely be made out and must be supported by clear evidence (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [48]. Such were the findings in this matter.
Accordingly, Ground 1(a) is not made out.

Ground 1(b)

Ground 1(b) asserts that the Authority failed to consider the applicant’s fear by reason of having testified LLRC.
A fair reading of the Authority’s decision record makes clear that the Authority accepted the applicant’s claim that he had testified before the LLRC. However, ultimately the Authority was not satisfied that there was a real chance of persecution by reason, inter alia, of having previously given evidence to the before the LLRC.
The Authority found that based on country information before it, the applicant did not have a profile that suggested that the applicant was at risk of harm now or in the reasonably foreseeable future for any real or perceived LTTE links; for any imputed political views; for having pursued his brothers abduction including giving evidence to the LLRC; and/or as a young Tamil male from the east.
The Authority noted that it is almost 5 years since the applicant left Sri Lanka and the authorities have not shown any further interest in his family.
The Authority was satisfied that the applicant would not be of any adverse interest to the Sri Lankan authorities, including the STF, and that there is no real chance of him suffering harm if he was returned to Sri Lanka.
As referred to above, the Authority’s findings were open to it on the evidence and material before it. The Authority’s reasons were cogent and its findings probative of the relevant issues.
Accordingly, Ground 1(b) is not made out.

Further Ground 1(b)

Further Ground 1(b) asserts that Authority failed to make realistic findings involving cumulative consideration of the applicant’s claims.
However, a fair reading of the Authority’s decision record makes clear that the Authority did consider the applicant’s claims cumulatively. In particular the Authority made the following findings in relation to the applicant’s claims:
“50. I am satisfied that the applicant will not face a real chance of persecution due to any links to the LTTE, for any imputed political opinion, for pursuing N’s abduction, including previously giving evidence to the LLRC, and/or as a young Tamil male from the east, if returned to Sri Lanka, now or in the reasonably foreseeable future.
…
63. Similarly, whether considered separately, in combination or cumulatively with a brief period of detention, I do not consider any processing, likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the IE Act, to constitute a threat to his life or liberty, or to be significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm.
…
74. Having considered the applicant’s circumstances individually and cumulatively, I am not satisfied that he faces a real risk of significant harm.”
Further, I accept the first respondent’s submission that in circumstances where the applicant’s claims were rejected, no amount of cumulative consideration of the rejected claims was capable of producing a different result (see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [33]-[34] per Gilmour, Markovic and O'Callaghan; SZTZY v Minister for Immigration and Border Protection [2018] FCA 911 at [10] per Logan J).
To the extent that Further Ground 1(b) asserts that the Authority erred by failing to make enquiries, that complaint is dealt with in Ground 2 below.
Otherwise, Further Ground 1(b) is not made out.

Ground 2

Ground 2 asserts that the Authority erred by failing to make enquiries in relation to documents that the Authority found not to be genuine.
In support of Ground 2 the applicant said that he had asked the Authority to conduct enquiries about the genuineness of the documents. The applicant stated that the Authority found the documents to be fraudulent. However, the applicant said that there was a record of the documents that they were genuinely issued but that the Authority did not accept that they were genuine.
The applicant, by his representative, provided a written submission to the Authority by way of email dated 18 April 2017, which included the following request:
“We respectfully request that you kindly use your good offices and check the authenticity of the documents through the Australian High Commission in Colombo.”

However, the Authority did not expressly address the applicant’s request that Authority “check the authenticity” of the corroborative material provided by the applicant.
The first respondent contends that no error arises from the Authority’s failure to expressly refer to the applicant’s request that the Authority check the authenticity of the corroborative material. In particular, the first respondent submitted that:
i)It is not open to the Court to infer that on the balance of probabilities that the Authority failed to consider the exercise of its discretion under s.473DC(3) of the Act.
ii)The Authority’s approach to its discretion in s.473DC(3) of the Act was reasonable.
iii)The Authority is not under a duty to get new information.
Certainly, the Authority’s review is to be conducted by considering “the review material” provided to the Authority under s.473CB of the Act without accepting or requesting “new information” and without interviewing the applicant. However, s.473DC is one of the exceptions to that principle.
Section 473DC of the Act is as follows:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
In giving reasons for an ultimate decision to affirm or remit, the Authority is not required to give reasons for the non-exercise of a procedural power such as that conferred on it by s.473DC(1) of the Act (see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (“BVD17”) at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [41]–[51] per Flick, Markovic and Banks-Smith JJ; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50] per Thawley J; CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]–[29] per Bromwich J.)
It is well established that the applicant bears the onus on the balance of probabilities of establishing the facts upon which a claim for relief is founded (see BDV17 at [38]; ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46] and [47] per Griffiths, Mortimer and Steward JJ; BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 (“BRZ17”) at [46] per Moshinsky J).
Further, the mere failure of the Authority to mention a discretion conferred by statute does not support the drawing of an inference that the exercise of the discretion was not considered. In BVD17 the High Court per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ stated as follows:
“39. The appellant's contention before the Full Court that the Authority failed to consider the exercise of the discretion conferred by s 473GB(3)(b) was based solely on an inference sought to be drawn from the fact that the Authority's statement of its reasons for decision contains no reference to the discretion. The Full Court did not err in rejecting that contention.
40. Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. The Authority's specific reference to taking particular country information into account as "new information", thereby indicating an exercise of discretion under s 473DC(1), lends no added support to the drawing of the inference. Having been before the delegate at the time of the decision under review, the information contained in the documents in the departmental file did not meet the description of "new information". The Authority's reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.”
BRZ17 appears to be on all fours with the case before this Court in relation to the drawing of an inference that the Authority considered the whole of the submission, including the request for a hearing. In BRZ17, Moshinsky J held at [46]-[48] as follows:
“46. As the Minister accepts, there may be circumstances in which the IAA could fall into jurisdictional error by failing to consider whether to exercise its discretion under s 473DC(3), if that failure was attended by legal unreasonableness: see Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [72], [82]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [70]. To succeed on this ground, however, the appellant would need to discharge the onus of establishing: (a) the factual foundation for the conclusion that the IAA did fail to consider exercising the discretion under s 473DC; and (b) that there was jurisdictional error in failing to consider exercising the discretion: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [38] per Thawley J.
47. Here, it is not established that the IAA failed to consider exercising the discretion in s 473DC. It is true that the IAA did not refer in its reasons to the appellant’s representative’s request that the appellant be given a hearing. However, in the circumstances of this case, I do not take the fact that the IAA did not refer to this matter to establish that it was not considered. The IAA referred expressly to the appellant’s representative’s submission and discussed whether to receive the material contained in the submission. This supports an inference that the IAA considered the whole of the submission, including the request for a hearing.
48. Further, it is not established that the IAA acted in a way that was legally unreasonable by not exercising the power in s 473DC(3) to invite the appellant to give new information at an interview. In order to establish jurisdictional error arising from legal unreasonableness, it is necessary: (a) for the appellant to identify the alleged failure with precision; (b) to examine the terms, scope and purpose of the statutory power that the IAA failed to consider; and (c) to evaluate the alleged failure to see whether it has the character of being legally unreasonable, for example because it lacked a rational foundation or an evident or intelligible justification, or because it was plainly unjust, arbitrary, capricious or lacking in common sense: see CCQ17 at [51].”
In the case before this Court, while the Authority did not expressly refer to the applicant’s request that the Authority check the authenticity of certain documents, the Authority did state that it “had regard to” the submission. A fair reading of the Authority’s decision record makes clear that the Authority gave detailed consideration to the contents of the submission.
In the circumstances, I draw the inference that the Authority considered the whole of the submission, including the applicant’s request.
The last issue in relation to Ground 2 before this Court is whether the Authority’s approach to its discretion was reasonable.
The first respondent accurately summarised the relevant principles in relation to legal unreasonableness as follows:
“18. The principles underlying jurisdictional error on the basis of legal unreasonableness may be summarised as follows:
(a) Legal reasonableness relates to the existence and scope of a discretionary power, rather than the expediency of its exercise. The existence and content of any framework of rationality that constrains the exercise of the discretion depend on the true construction of the relevant legislation: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [29]–[30] per French CJ.
(b) As legal reasonableness concerns the lawful exercise of power, it is not a vehicle for challenging a decision on the basis that the decision-maker has made an evaluative judgment with which a reviewing court disagrees if the judgment was reasonably open to the decision-maker, that is, within the area of decisional freedom within which the decision-maker has a genuinely free discretion: Li at [30] per French CJ. Thus, jurisdictional error will not result if minds might differ as to whether the decision reached was the correct one.
(c) Legal unreasonableness may describe the consequence of establishing a recognised species of jurisdictional error or an outcome-focused conclusion without any specific jurisdictional error being identified: Li at [27]–[28] per French CJ, [72] per Hayne, Kiefel and Bell JJ. The latter occurs where the decision is capable of explanation only on the ground of some misconception, if the decision is unreasonable or plainly unjust or lacks 'an evident or intelligible justification', or if 'the result itself bespeaks error': Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 at 360 per Dixon J; Li at [76], [85] per Hayne, Kiefel and Bell JJ.
(d) If a discretionary power is 'ill-defined', it will be necessary to look to the scope, purpose and object of the statute conferring the power: Li at [67] per Hayne, Kiefel and Bell JJ.”
I accept the first respondent’s submissions that Part 7AA of the Act sets out a restrictive system of merits review in which the Authority may, and in many cases must, proceed to make a decision without any input from the applicant. Whether the Authority acted reasonably in the circumstances is fact dependant and requires that consideration be given to the relevant facts and evidence before the Court (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42] per Allsop CJ, Robertson and Mortimer JJ).
In considering whether the Authority acted reasonably, I adopt as correct in its entirety the first respondent’s submission that the facts of this case demonstrate that the Authority’s approach to the exercise of its discretion in s.473DC of the Act was reasonable:
“21. The question of whether the Tribunal has acted reasonably is ‘invariably fact dependent’ and therefore consideration needs to be given to the relevant facts of the matter and the evidence before the court: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]. The first respondent submits that the facts of this particular matter demonstrate that the IAA's approach to its discretion in section 473DC of the Act was reasonable:
(a) the IAA stated that it ‘had regard to’ the submission (CB 317: [4]);
(b) the IAA considered the content of the submissions in detail (CB 317–318: [3]–[7]);
(c) the submissions did not suggest the applicant had 'new information' to give to the IAA beyond that to which the applicant specifically referred in the submission itself (BRZ17 at [51] per Moshinksy J);
(d) the applicant made no attempt to provide further corroboration of the documents in question;
(e) the veracity of the applicant's corroborative evidence was considered by the delegate (CB 141, 146, 147) (cf. CRY16 at [76], [82] per Robertson, Murphy and Kerr JJ);
(f) the IAA made detailed and dispositive findings addressing the applicant's corroborative material (CB 323: [24], [27]–[28]); and
(g) the weighing of various pieces of evidence is a matter for the Tribunal (Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197] per Gummow and Hayne JJ).”
In the circumstances, the Authority’s approach to its discretion in s.473DC of the Act, fell within the range of possible acceptable outcomes that are defensible in respect of the facts and law (see Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [105] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [9], [70], [123], [141] per Kiefel CJ, Gageler, Nettle and Gordon JJ).
In relation to s.473DC(2) of the Act, the Authority does not have a duty to get, request or accept any new information, whether the Authority is requested to do so or in any other circumstances.
In DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222, the Full Court of the Federal Court found at [72] per Collier, Middleton and Rangiah JJ, that it was questionable whether there is a duty imposed on the Authority by Part 7AA of the Act to make an enquiry of the kind described in relation to the Administrative Appeals Tribunal by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, that is an obvious enquiry about a critical fact easily ascertained.
In any event, the applicant before this Court has not identified any critical fact, the existence of which is easily ascertained.
In the circumstances, I accept the first respondent submission that, having regard to the Authority’s detailed and dispositive findings addressing the applicant’s corroborative material, there is nothing to indicate that any further enquiry could have yielded a useful result (see SZIAI at [26]).
Accordingly, Ground 2 is not made out.

Conclusion

A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:

Date: 21 November 2019