BBB18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 748
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BBB18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 748
File number(s): MLG 549 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 23 May 2025 Catchwords: MIGRATION – Safe Haven Enterprise (Class XE) (Subclass 790) visa – Whether an unreasonable failure to exercise discretion under s 473DC(1) of the Migration Act 1958 (Cth) – Whether jurisdictional error material - Authority unreasonably exercised discretion – Informational gap – Jurisdictional error - Application allowed - Writs to issue. Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958 (Cth), ss 5H(1), 36(2)(a), 36(2)(aa), 473CB, 473CB(1), 473DC, 473DC(1), 473DC(3), 473DD, Div 3, Part 7AA
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 259 CLR 439; [2020] HCA 34
ADN17 v Minister for Home Affairs [2019] FCA 1037
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
AWV18 v Minister for Home Affairs (No 3) [2019] FCA 365
BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Nathanson v Minister for Home Affairs [2022] HCA 26
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Singh v Minister for Home Affairs [2019] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of last submission/s: 1 May 2025 Date of hearing: 1 May 2025 Place: Melbourne Solicitor for the Applicant: Mr G Arujunan, AUM Legal Solicitor for the Respondents: Mr A Gardner, Mills Oakley ORDERS
MLG 549 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBB18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The decision of the Immigration Assessment Authority made 9 February 2018 be quashed;
3.A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review according to law; and
4.The Court will hear from the parties as to the appropriate disposition of costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made 9 February 2018. The Authority affirmed the decision of a delegate of the first respondent (Minister) made 3 June 2017 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (visa).
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “A1”.
BACKGROUND
The applicant is a citizen of Sri Lanka. The applicant arrived in Australia on 9 September 2012 as an unauthorised maritime arrival (CB 193-4). He claims to be from the Vavunyia District of the Northern Province of Sri Lanka (CB 236).
On 25 May 2016, the applicant filed an application for a Temporary Protection (Class XD) (Subclass 785) visa. The applicant claimed he feared harm from the Sri Lankan authorities and unidentified paramilitary groups due to his Tamil ethnicity and his association with the Liberation Tigers of Tamil Eelam (LTTE) (CB 4-78).
On 3 February 2017, the Department of Immigration and Border Protection (Department) invited the applicant to attend an interview scheduled for 27 February 2017 (CB 87-9).
On 24 February 2017, the applicant’s then representative informed the Department that the applicant intended to withdraw his application for the Temporary Protection visa and instead make an application for the visa (CB 99).
On 27 February 2017, the applicant attended the interview (CB 194) (A2, Annexure NG1, Transcript). The applicant raised an additional protection claim that he feared being harmed and killed by the Sri Lankan Government because of his participation in a Heroes’ Day march in Perth, Australia on 27 November 2016 (CB 196-7). During the course of that interview, the applicant revealed to the interviewing officer a scar on the applicant’s chest which he claimed was from an injury he received during “crossfire” between Sri Lankan Army (SLA) troops and the LTTE (CB 237). The officer described the scar as a “mark on your chest” but did not seek a photograph or otherwise to record what the officer saw (A2, Transcript p 21).
On 15 March 2017, the applicant’s representative submitted further written submissions dated 13 March 2017 to the Department (CB 100-24). Those submissions explained in detail the claims for protection and fear of persecution should the applicant be required to return to Sri Lanka. One of those claims was a fear that upon return the applicant will be detained and questioned as to his reasons for departing Sri Lanka illegally in 2012. Annexed to those submissions were a completed Temporary visa withdrawal form (CB 125-8) and an application for the visa (CB 129-172).
On 3 June 2017, the delegate refused to grant the visa (CB 190-209). The delegate found that the applicant had provided “low level support” to the LTTE for a short period of time and therefore did not have a profile of ongoing interest to the Sri Lankan authorities (CB 204). The delegate was not satisfied that the applicant would face a real risk of serious or significant harm if he returned to Sri Lanka. The delegate found that the applicant was not a refugee as defined by s 5H(1) of the Migration Act 1958 (Cth) (Act) and was not a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 193-209).
On 8 June 2017, the delegate’s decision to refuse to grant the applicant the visa was referred to the Authority for fast-track review (CB 211-2).
On 29 June 2017, the applicant’s then representative provided further written submissions to the Authority which annexed a letter from Mrs S, a Member of Parliament of Sri Lanka, (Letter) (CB 224-5). The Letter purported to confirm that, according to her investigations, the applicant’s wife’s complaints that the applicant “has been searching by the criminal investigation department (CID) Sri Lanka” (sic) were true and correct. The submissions also sought to confirm the applicant’s claims that in 2012 he was abducted by the SLA and tortured, that unknown men then came to his home when he was at work and searched for him. The applicant also claimed that since leaving Sri Lanka police have come to his home and made enquiries about him (CB 224-30). Reference was also made to country information from both DFAT and the UK Home Office regarding risks then faced by Tamils from the Northern Provinces who returned to Sri Lanka after departing illegally (CB 229).
On 9 February 2018, the Authority affirmed the delegate’s decision to refuse to grant the visa (Decision) (CB 234-54).
AUTHORITY’S DECISION
In the Decision, the Authority considered the material referred by the Secretary which included a recording of the interview conducted on 27 February 2017. The Authority also referred to the Letter submitted on behalf of the applicant. It acknowledged that the Letter post-dated the delegate’s decision and sought to confirm the applicant’s previous claims that the Sri Lankan Army, unknown men and police continue to search for him. The Authority found that the Letter was “devoid of any detail” concerning the events referred to therein, and it was not satisfied that the Letter contained credible information or was of any real probative value. The Authority was not satisfied that there were exceptional circumstances to justify considering the Letter under s 473DD of the Act. (CB 236 [5]).
The Authority then considered the further written submissions which in substance echoed the earlier submissions provided by the applicant’s representative to the delegate (CB 101-124). The Authority acknowledged that the submissions referred to country information and reports which, although published prior to the delegate’s decision, were not before the delegate and therefore constituted “new information” (CB 236 [6]). It considered that the new country information did not contain personal information that could not have been provided prior to the date of the delegate’s decision. The Authority was also not satisfied that there were exceptional circumstances to justify considering that new information (CB 236-7 [6]).
The Authority accepted the applicant’s evidence that he is of Tamil ethnicity and Hindu faith from the Northern Province of Sri Lanka (CB 238 [10]). It also accepted his claims that he sustained an injury in crossfire during conflict between the SLA and LTTE in 2008 and was hospitalised (CB 238-9 [11]). After his release from hospital the applicant and his family were displaced by the conflict in the Mannar District (CB 238-9 [11]). After displacement the applicant made his home in the Mullaitivu District prior to the ceasefire. The Authority accepted the applicant’s evidence that the areas in which the applicant lived were under LTTE control and that the Tamils in those areas were forced (by compulsion) to dig bunkers and cook food for the LTTE. This occurred from 1994 to 2008. The Authority considered the applicant’s interview evidence and found that the applicant was only forced to dig bunkers during a two-to-three-month period whilst in Kilinochchi in 2008. The Authority accepted the applicant’s claim that he hid and managed to avoid most other occasions when the LTTE demanded assistance from him (CB 239 [12]).
The Authority acknowledged the applicant’s claim that he was interrogated about his life and LTTE involvement and was tortured. It considered country information which indicated that immediately after the war, authorities sought to identify LTTE cadres and supporters amongst Internally Displaced Persons (IDP) who had fled the northern conflict zones and who were being held at IDP camps. The applicant was a displaced person who fled with his family from the northern conflict zones in 2009 and was taken by the SLA to the IDP camp in Vavunyia (CB 239 [13]). The Authority accepted that the applicant may have been mistreated and beaten during this time (CB 240 [14]-[15]).
The Authority made the following findings (CB 240 [15]):
[15] I find that the security intelligence services frequently vetted the applicant during his many months in the IDP camp, possibly with the assistance of undercover informants, and that what they discovered about him was not of any adverse interest to them. I consider that had the applicant’s very low-level activities compelled by the LTTE been of any concern to the authorities it is highly likely he would have been identified and detained for further investigation and rehabilitation or arrest for prosecution under the extensive powers of the Emergency Regulations and Prevention of Terrorism Act 1979 (PTA). There is no evidence before me that any of the applicant’s family members were associated with the LTTE and I find that they were not.
The Authority considered the applicant’s claim that in June 2012, he was abducted from his home in Mallavi for the purpose of questioning. It further considered the applicant’s evidence that he was tortured and beaten, particularly the applicant’s suspicion that the sudden interest in him in June 2012 arose because the army had gathered information about people who had suffered injuries and then sought the assistance of the Sri Lankan Government. The Authority found that the applicant gave no evidence about anything specifically said by his abductors to substantiate a suspicion that the applicant had LTTE involvement. The Authority also considered the evidence that unidentified men came to his home in search of the applicant and demanded payment from his wife to “release him”. It then considered the applicant’s evidence that his wife (in his absence) paid 200,000 Rupees to these men, and that despite the applicant fleeing their village and going into hiding by living with his sister, unidentified men continued to visit his home to search for him. This led the applicant escaping to Australia in August 2012 (CB 240-1 [16]).
The Authority made the following findings on the applicant’s alleged abduction (CB 241 [17]):
[17] I do not consider this account to be plausible. I have found that the authorities had no interest in the applicant upon release from the IDP camp and that they had no adverse interest in him upon resettlement back in Mallavi. I note that he gives no evidence of questioning or monitoring of himself or his family by any authorities in the two and half years since he was released from the IDP camp prior to June 2012. I do not accept the inferred claim that the Army researched hospital records to enquire about people with injuries sustained in the war and targeted the applicant in any way based upon his chest injury. Had the applicant been picked up because the SLA genuinely considered he was an LTTE suspect and had ongoing concern about him, I do not consider that he would simply have been released to go home and not immediately detained in a police station for further investigations or charges or taken to a rehabilitation centre or made to sign any official documents. I do not accept that the SLA or any authorities had developed any suspicion of the applicant as an LTTE member or supporter or otherwise had any adverse interest in him.
The Authority identified inconsistencies in the applicant’s evidence and did not accept the applicant’s claims that his family had been questioned or monitored. It considered the applicant’s claim that his wife continues to be harassed by army personnel who visit her regularly and threaten her. The Authority accepted that the applicant’s wife told authorities that the applicant fled to Australia and that the authorities went to their home twice in 2015 to take details of the family. The Authority found that this was the “norm” and that the police “collected information on everyone” and such visits were part of general village household monitoring conducted on all Tamil residents in that region (CB 241-2 [18]).
The Authority did not accept the applicant’s claims that he was abducted in 2012 or that unidentified men came searching for him, nor did it accept that the applicant went into hiding prior to arriving in Australia and that the authorities have been harassing or threatening the applicant’s wife since (CB 241-2 [18]).
The Authority observed that despite the applicant claiming in post-interview submissions that he feared persecution by paramilitary groups, no specific group was named in his application, the submissions or at the interview. The Authority rejected the applicant’s claims that unidentified men came to his home to search for him and demanded money from his wife. The Authority considered country reports that noted former paramilitary groups had renounced their activities but that some remained active in criminal activities including murder, abductions and extortion. It noted that some reports indicated that such activities are largely politically motivated to target active members of Tamil civil society, or, were “criminally motivated, [to] extort from the rich, and incidences were significantly reducing since the conflict”. Based on the applicant’s evidence that he had not claimed to be rich (and his evidence that he had worked odd jobs on his father’s farm), as well as not claiming to be an activist, the Authority did not accept that the applicant was previously targeted or searched for by any paramilitary group. It found that there would not be a real chance that the applicant would suffer harm from any paramilitary group on return to Sri Lanka (CB 242 [19]).
The Authority also referred to country information considered by the delegate about the former Rajapaksa Government which governed at the time of the applicant’s departure from Sri Lanka in 2012. it noted that the former government’s focus at this time pertained to (CB 242 [20]):
“…identifying and arresting and prosecuting or rehabilitating former LTTE members, including low-level supports who provided high-level material support; and an environment of repression pervaded, under which many Tamils reported being monitored, harassed and arrested and/or detained and tortured by security forces…”
The Authority considered that the outcome of this treatment towards former LTTE members raised the risk profile of persons seeking international protection, however found that five years had passed since this guideline, there had been considerable socio-political change in Sri Lanka and that the LTTE no longer existed as an organised force (CB 242 [20]). It further noted that the government under the new President, Sirisena, focused on greater engagement with Tamil political parties, including those comprising former LTTE members (CB 242-3 [21]).
The Authority concluded that the applicant’s low-level activities when living under LTTE control for several years would not attract adverse attention of the authorities (CB 242-3 [21]). It did not accept that the presence of the applicant’s scar would create any risk of harm and found that there was no evidence that authorities were even aware of the scar or its cause. It also considered DFAT country information which did not indicate that scarring created concern for Tamil persons (CB 243-4 [22]).
The Authority accepted that the applicant attended the Heroes’ Day march in Perth, Australia, however, was not satisfied that his attendance would cause Sri Lankan authorities to consider the applicant a threat to the integrity of the state. It found that his attendance would not “impute a profile of LTTE or separatist sympathy or increase any such perceived profile”. The Authority acknowledged that, based on credible reports from 2015, the Sri Lankan Government maintained information on separatist movements of such a high degree, that the government could distinguish persons involved in promoting Tamil separatism in Sri Lanka. It further noted that that low-level membership including participation in demonstrations that promoted Tamil separatism in Sri Lanka in any extent, did not give rise to adverse interest from the authorities. It noted that country information indicated that returnees might generally be questioned about activities outside of Sri Lanka, however, no reports or arrests had been made based on association with a proscribed diaspora group. The Authority did not accept that even if the authorities could identify the applicant as having attended the march, which it considered to be remote, the “applicant’s attendance at one such event would either of itself, or in the context of his history cause the authorities to view the applicant as being a threat to the integrity of the state” (CB 244 [23]).
The Authority had regard to the submissions submitted by the applicant to the Department. The applicant had submitted that his profile as an LTTE supporter, based on his activities during the war and his ethnicity as a Tamil from LTTE controlled areas, put him at risk of arrest, torture or enforced disappearance. It concluded that the applicant was “…not a supporter of the LTTE, that any tasks performed for them were compelled and that he has no profile of adverse concern to the authorities”. The Authority noted that country information before it suggested that arrests of returnees are largely relevant to offences under the Immigrants and Emigrants Act 1949 (Sri Lanka), or for outstanding warrants or use of false documents. It acknowledged that there had been reports in 2015 and 2016 regarding people with suspected tenuous links to the LTTE being targeted, arrested and/or detained, tortured or disappearing and considered that this involved a small number of instances that primarily occurred during the tenure of the previous government (CB 245 [24]).
It considered the United Kingdom Home Office Country Policy and Information Note (Sri Lanka) published March 2017 (Home Office Report) which found that unlike previously, returnees with prior LTTE connections were able to return to their communities without suffering ill-treatment and that police interest, if any, pertained to establishing correct identity and investigations into any committed criminal act or offence by use of false identities of departees, and not LTTE involvement. The Authority found that there was no evidence before it that the applicant committed any offences, other than under the Immigrants and Emigrants Act 1949 (Sri Lanka) (CB 246 [27]).
The Authority made the following findings at paragraph [29] (CB 247):
[29] I do not accept that the applicant fled Sri Lanka in fear of persecution or of continuing harassment and torture from the authorities. I accept that the applicant departed Sri Lanka illegally in a smuggler boat and without a Sri Lankan passport. I accept the applicant will be investigated under the Immigrants and Emigrants Act 1949 (I&E Act) which regulates entry and exit from Sri Lanka. Under the I&E Act it is an offence to depart other than from an approved port of departure. Penalties for leaving Sri Lanka illegally include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees. In practice, penalties are applied on a discretionary basis and are almost always a fine.
The Authority accepted that the applicant may be identified as a former asylum seeker on return to Sri Lanka. It did not accept, based on country information regarding mistreatment of returned asylum seekers who have certain, actual, or imputed LTTE links, that the applicant has such a profile or would be perceived as such (CB 248 [35]).
The Authority made the following findings at paragraph [36] of the Decision (CB 248):
[36] For the reasons given above, I am not satisfied that the applicant will be viewed with any adverse interest upon return to Sri Lanka either as a Hindu Tamil male from the north or because of his actual or perceived LTTE activities in the past or because of a chest scar, nor because of attending a Heroes Day Celebration in Perth. Nor am I satisfied that he will be perceived to have been or to now be a threat to national security. I am not satisfied that the applicant faces a real chance of harm in Sri Lanka for these reasons or any combination of them, from Sri Lankan authorities or from any paramilitary groups.
The Authority concluded that the applicant did not satisfy the requirements of the definition of a refugee in s 5H(1) of the Act and did not meet the criteria under s 36(2)(a) of the Act (CB 249 [37]). The Authority then considered the complimentary protection criteria. It was not satisfied that there was a real risk of the applicant suffering significant harm upon return to Sri Lanka, based on the applicant’s profile and circumstances (CB 250 [42]). The Authority also concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant will suffer significant harm. The applicant therefore did not meet the criteria for complementary protection under s 36(2)(aa) (CB 250 [43]).
PROCEEDINGS IN THIS COURT
On 5 March 2018, the applicant filed the application for judicial review in this Court. The application for judicial review set out the following grounds:
The decision of the IAA is affected by jurisdictional error.
Particulars
a. The Applicant put “new information: to the Second Respondent, that is, a letter from Mrs. S, MP for Vanni district.
b. The Second Respondent made a decision to consider whether to consider the new information for the purpose of the review and went on to determine, in accordance with s.473DD(a) of the Migration Act 1958 (Cth), whether it was satisfied that there were “exceptional circumstances” to justify considering the new information.
c. In forming that state of satisfaction, the Second Respondent did not take into account:
d. all of the circumstances, which, in addition to those considered by the Second Respondent, were the cogency of the new information and its relevance to the decision under review; and
e. whether the circumstances considered by it and those that it ought to have considered where, in combination, “exceptional circumstances”.
f.
On the proper construction of s.473DD(a), such matters were required to be taken into account in forming the state of satisfaction.
g. The tribunal has failed to consider each integer of the claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm as per section 91 of the Migration Act.
Particulars
The Second Respondent has noted that the applicant has produced a temporary ID card. The decision maker makes no reference to the applicant only having a temporary NIC and the possible consequences it could have for him. A particular issue of concern is the failure to deal with his lack of proper Sri Lankan documentation and the consequence that this could have upon his liberty. The possession of temporary documentation places him in a very vulnerable position, if he was to be returned to Sri Lanka. It is well established that any returnee will be questioned on arrival. In this case, he only has a temporary NIC upon his return to Sri Lanka.
h. In considering whether there is a real risk of the applicant experiencing treatment involving “significant harm” for the purposes if s.36(2)(aa), the Second Respondent has taken into consideration that the applicant may be detained for up to 24 hours and that returnees may be held in a nearby prison and it acknowledges that general prison conditions in Sri Lanka do not meet international standards. The Second Respondent should have considered the scar on the applicant’s chest and whether if he did have to spend time in a prison that scar would become a greater issue. The person is likely to be detained and stripped during interrogation for other reasons, and if the scarring was likely to be such as to raise suspicions. In other words it has not evaluated the nature and gravity of that loss of liberty, if the authorities became aware of his scar.
The application was supported by an affidavit affirmed by the applicant on 4 March 2018 which simply annexed a copy the Decision and asserted jurisdictional error by the Authority.
A hearing of the application for judicial review was first listed before this Court on 26 March 2025 by video link. On 20 March 2025, the applicant’s recently appointed solicitor sought an adjournment on the basis that he had only recently been engaged by the applicant and thought it was necessary to file an amended application with proper particulars, further evidence and an outline of submissions.
On 26 March 2025, the Court heard from the parties as to the adjournment sought by the applicant. The Minister’s solicitor made no opposition to the adjournment request. This Court subsequently made orders granting leave to allow the applicant to file and serve a further affidavit and outline of written submissions in support of the amended application for judicial review by 4 April 2025. Those orders also required the Minister to file and serve any further affidavit evidence and further written outline of submissions in response by 17 April 2025. The proceeding was adjourned and relisted for hearing before this Court on 1 May 2025.
On 4 April 2025, the solicitor for the applicant filed an outline of submissions, an affidavit of the applicant affirmed 2 April 2025 and an affidavit from an employee of the applicant’s representative, affirmed 4 April 2025. The applicant’s affidavit annexed two photographs of a prominent scar on his chest, which was said to be the same scar shown to the delegate during the interview conducted on 27 February 2017 (CB 194) (Exhibit A2, annexure NG1). The affidavit of the employee annexed a transcript of the applicant’s interview with the Department of Home Affairs on 27 February 2017 (A2, Transcript). No objection was taken to the authenticity of the photographs or Transcript.
The Court made orders on 9 April 2025 permitting the applicant to further amend the application for judicial review and extend the time for the Minister to file any further affidavit evidence and any further written outline of submissions to 24 April 2025.
On 10 April 2025, the applicant filed a further amended application for judicial review which set out the following new grounds of review:
Ground 1
The decision of the IAA was vitiated by an unreasonable failure to exercise, or consider whether to exercise, the power under subsection 473DC(1) of the Migration Act 1958 (Cth) to ‘get’ from the Applicant, evidence of the scar on his chest, or to invite the appellent under section 473DC(3) to an interview, or to provide evidence of the scar
AWV18 v Minister for Home Affairs (No.3) 2020 FCA 365
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58Particulars
The Applicant showed the scar on his chest to the delegate at the SHEV interview
The delegate noted in his decision record of the scar shown by the Applicant (CB 194)
The IAA knew the Applicant showed the scar to the delegate.
However, the evidence of scar was not available to the IAA (informational gap)
The scar was central to the Applicant’s claim of fear of harm which was acknowledged by both the delegate and the IAA.
The IAA failed to obtain evidence of scar under 473DC so that the IAA can independently assess the extent of the Applicant’s scar which was central to the Applicant’s claim.
The IAA at CB243 [22] trivialised the scar without any evidence that “I do not accept that the injury was very severe...” contrary to evidence provided by the Applicant.
Ground 1A
In the alternative, the failure by the Secretary to comply with subs 473CB(1) (in not providing the evidence of scar) resulted in jurisdictional error on the part of the Authority as it prevented the Authority from conducting the “review” contemplated by subs 473CB(1)(b) of the MA.
BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 at [84]
Particulars
Particulars to ground 1 applies.
Ground 3
The decision of the IAA was vitiated by jurisdictional error in that it failed to consider the Applicant’s claim that he fears if forced to return to Sri Lanka, he will be detained on grounds that he did not come forward to identify himself as the person who had been with LTTE.
Particulars
The Applicant gave evidence that the Sri Lankan Army specifically announced that Tamils who worked even for one day with LTTE must come forward. (SHEV transcripts page 1 Line 30 and page 6 Line 10-15)
Nothing in the IAA’s decision shows it considered this claim.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR at [46] (French, Sackville and Hely JJ)
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. (emphasis added)
On 24 April 2025, the solicitor for the Minister filed a further outline of written submissions.
The application for judicial review was heard before this Court at Melbourne on 1 May 2025. Mr Arujunan, solicitor, appeared on behalf of the applicant by video link. Mr Gardner, solicitor, appeared on behalf of the Minister.
APPLICANT’S SUBMISSIONS
Mr Arujunan for the applicant tendered the Court Book which was marked exhibit “A1”, the affidavit of the applicant’s solicitor’s employee affirmed 4 April 2025 and the affidavit of the applicant affirmed 2 April 2025 which were tendered and marked exhibits “A2” and “A3” respectively.
Mr Arujunan submitted that the Authority failed to reasonably exercise its power of discretion under s 473DC(1) of the Act to “get” from the applicant evidence of the scar on his chest, or to invite the applicant under s 473DC(3) to an interview. This was an unreasonable failure to exercise the statutory discretion.
Mr Arujunan submitted that during the interview with an officer of the Department on 27 February 2017, the applicant was questioned about the injuries he sustained in the civil war in Sri Lanka and he showed the scar on his chest to the interviewing officer (A2, Transcript p 21, Lines 15-25). The interviewing officer’s description of the scar was that it was a “mark on his chest” (A2, Transcript p 21 Line 25). Mr Arujunan submitted that, without having the benefit of seeing the scar, the Authority determined that the injury suffered was not serious (CB 243-4 [22]). This was a jurisdictional error. The Authority also concluded that the injury was not “very severe” because it found that the applicant returned to work shortly after sustaining the injury and was forced to dig bunkers (CB 243-4 [22]). It was submitted that there was no evidence to substantiate this finding especially when the Authority did not seek to inspect the scar or receive physical evidence of it. The Authority had the power to interview the applicant and obtain new information to fill an information gap created by the delegate but it unreasonably refused to do so.
The solicitor for the applicant took the Court to the statement of the applicant dated 22 March 2016 which was provided to the Department on 25 May 2016 (CB 70-4). Paragraph [11] of the statement states that the applicant “sustained serious shrapnel injuries to [his] chest which affected [his] ability to work after that” (CB 71). It was submitted that, during the interview, there was nothing to suggest that the applicant claimed to return to work following the injury (A2, Transcript pp 21-2).
Mr Arujunan submitted that the Authority failed to properly consider the medical report provided by the applicant, claiming that the brevity of the report was due to being prepared during the war in Sri Lanka (CB 54). The applicant for the solicitor took the Court to paragraph [8] of the medical report which contended that the nature of the injury indicated a 60% “loss of earning capacity or disability” (CB 54). The report also indicated that the applicant spent eighteen days in hospital before he was discharged.
The solicitor for the applicant referred the Court to ABT17 v Minister for Immigration and Border Protection (2020) 259 CLR 439; [2020] HCA 34 (ABT17) and read paragraph [3] where Kiefel CJ, Bell, Gageler and Keane JJ said:
[3] The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.
Mr Arujunan then took the Court to paragraphs [16] and [18] of ABT17 where the Court found that the power to get and consider new information and invite the applicant to attend a further interview enables the Authority to bridge any informational gap in the materials before it. It was submitted that there is an implied condition of reasonableness that may compel the Authority to adopt the course to exercise its discretion to get information from an applicant. Mr Arujunan read paragraph [19] of ABT17 where the High Court said that the implied condition of reasonableness is “not confined to why a statutory decision is made; it extends to how a statutory decision is made”.
The solicitor for the applicant submitted that an interview before the Department must form part of the review material provided to the Authority and where there is an information gap, there is the statutory duty of the Authority to consider how to bridge that gap. This was part of the implied condition to act reasonably.
Mr Arujunan referred the Court to the case of BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 (BVC20) per Wigney J. In that case, the appellant had two scars, a fresh scar and an older scar, which were shown during the applicant’s interview with the delegate. The appellant produced a digital photo of the older scar to the delegate which was allegedly taken before the second scar occurred. It was alleged that the second scar was incurred following a beating by police. As the Department did not retain a copy of the photograph shown to the interviewing officer, the photograph was not provided to the Authority on review. The Court found that it was the delegate’s responsibility to take appropriate steps to be in possession of a copy of the photograph and to retain that material. The Court concluded that by showing the digital photograph to the interviewing officer, the appellant had “provided the delegate with the information contained or depicted in it” (BVC20 at [73]).
Mr Arujunan asserted that the delegate’s failure to provide the Authority with complete records gave rise to an informational gap in the review material before the Authority, and that this information was essential to the Authority’s assessment of the applicant’s claim (ABT17 at [75]).
It was further submitted that similar principles were applied in AWV18 v Minister for Home Affairs (No 3) [2019] FCA 365 (AWV18). In AWV18, the applicants showed the delegate an obituary advertisement (relating to the second applicant’s brother) during an interview, however a copy of the advertisement was not retained by the delegate or given to the Authority. Justice Derrington found that the Authority made a jurisdictional error by an unreasonable failure to exercise the power under s 473DC(3) to obtain a copy of the information provided to the delegate (AVW18 at [90]-[98]).
As for materiality, Mr Arujunan submitted that the threshold for materiality is low. All that is required is that the Decision could be different had the error not occurred. Materiality is also “bound up” in the concept of unreasonableness (ABT17 at [71]-[72] per Nettle J). Where there is an unreasonable exercise of the statutory power there is no need to show materiality.
It was submitted that in any event, the applicant’s scar was material to his application and his claims. The Authority considered country information relevant to the applicant’s claims, namely that the scar would raise suspicion among the authorities as to his LTTE involvement, however the Authority did not consider that the presence of the scar on the applicant’s chest creates any risk of harm for the applicant (CB 243-4 [22]). The solicitor for the applicant took the Court to the Home Office Report which provided that Tamils returning from abroad continue to be arrested and subjected to screening at the airport and after arrival in their home area, and that military intelligence officials were actively looking for Tamils returning home for interrogation purposes (Home Office Report [2.4.2], [12.2.9]-[12.2.10]). Further, the DFAT Country Information Report (Sri Lanka) published 24 January 2017 (DFAT Report) a copy of which was provided to the Court without objection, provided that high-profile former LTTE members remain at the highest risk of monitoring, arrest, detention or prosecution (DFAT Report [3.38]). Therefore, if the applicant was deemed suspicious the real chance of harm was substantial.
Mr Arujunan referred the Court to the applicant’s written submissions that were before the delegate which stated that the applicant never admitted to the Sri Lankan authorities that he had dug bunkers for the LTTE and he was fearful that they may have learnt that information and he may be investigated if he was forcibly returned to Sri Lanka (CB 73 [23]).
To conclude the applicant’s first ground of review, the Authority erred by failing to exercise the power vested in it under s 473DC to get information of the scar from the applicant and therefore exercised the statutory task unreasonably. The Authority was required to fill the information gap caused by the Department’s failure to provide all relevant information to the Authority. If the scar was significant or suspicious then there was a real chance that the applicant may suffer serious harm at the hands of Sri Lankan authorities.[1]
[1] Reference was made to UK Home Office “Country Policy and Information Note, Sri Lanka” version 4.0 March 2017 referred to by the Authority in the Decision at [22].
In relation to ground 1A, the solicitor for the applicant referred again to the decision of Wigney J in BVC20 at paragraph [84] where his Honour found that the Authority did not conduct a review in accordance with Div 3 of Part 7AA of the Act, where the review material provided by the Secretary was incomplete. Mr Arujunan acknowledged that his Honour then concluded that the error was not a material jurisdictional error (BVC20 at [120]), however, in this case, it was submitted that the error was material because the scar was central to the risk of significant harm to the applicant on return to Sri Lanka.
In relation to ground three, Mr Arujunan submitted that the Decision was vitiated by jurisdictional error because the Authority failed to properly consider the applicant’s claim that if he was to now return to Sri Lanka, he would be identified and detained by Sri Lankan authorities due to his past affiliation with the LTTE. In particular, because he did not voluntarily come forward to identify himself as having some affiliation with the LTTE when previously questioned and interrogated.
At the interview with the delegate, the applicant told the delegate that when he was displaced and living in the IDP camp, the Sri Lankan army authorities required persons who performed any form of work for the LTTE (even if forced to render support) and “worked even one day” to surrender to the army (A2, Transcript p 17, Lines 15-20). The applicant did not confess to prior assistance to the LTTE for fear of harm.
The solicitor for the applicant then referred the Court to ADN17v Minister for Home Affairs [2019] FCA 1037 per Mortimer J (ADN17). In that case, the appellant expressed fears during the interview with the delegate that if he returned to Sri Lanka he could be apprehended and detained. The appellant told the delegate that he and his father were known to and questioned by the CID regarding his links to the LTTE, albeit involvement described by him as limited (ADN17 at [23]-[25]). The appellant claimed fears that if he returned to his village, he could be identified by a person familiar with his previous LTTE involvement and then reported to the CID (see ADN17 at [13]). At paragraph [36]-[37] of ADN17, the Court rejected the Minister’s submission that the Authority actively engaged with and considered the appellant’s claims as a whole. The Court at [34] found that the appellant’s overlooked claim was that:
[34]…on being questioned (whether at the airport or in his village) it would be discovered that he had failed to confess the extent of his actual involvement with the LTTE and that he would be mistreated once that failure was discovered, as he maintained it inevitably would.
Her Honour at paragraph [37] then referred to the Full Court decision in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE) at [46], where the Full Court concluded that “a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason” was a failure to complete the statutory task.
The issue to be determined was whether the claim was one clearly raised or apparent on the face of the materials which was not considered by the Authority (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [59] per Black CJ, French and Selway JJ and SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 per Selway J).
If the claim had been clearly raised, then the question to be determined was whether the Authority engaged actively and intelligibly with the claim (see Singh v Minister for Home Affairs [2019] FCAFC 3 at [36]).
It was submitted that the Authority’s failure to properly consider this claim was also a material jurisdictional error. It was submitted that the Decision should be quashed and the decision of the delegate remitted to the Administrative Review Tribunal for review.
MINISTER’S SUBMISSIONS
The solicitor for the Minister, Mr Gardner, sought to address three preliminary matters raised by the solicitor for the applicant, in particular; the finding by the Authority that the applicant returned to work after sustaining his injury, the Authority’s alleged failure to properly consider the medical report, and the Authority’s erroneous reliance on the Home Office Report when considering risk of harm.
Firstly, Mr Gardner rejected the submission that the Authority’s finding that the applicant returned to work after sustaining the injury to his chest was not open on the evidence. The solicitor for the Minister referred the Court to the Transcript where the applicant confirmed that he began digging bunkers for the LTTE in 2008 (A2, Transcript p 19, Line 19). The interviewing officer then confirmed with the applicant that he was in Kilinochchi at the time that he was approached to dig bunkers for the LTTE (A2, Transcript p 19, Line 37), and the applicant stated that he performed this labour for a period of two to three months (A2, Transcript p 20, Line 6,). It was submitted that, when read together, the applicant gave evidence that he was in Mallavi and after being discharged from hospital after less than three weeks, the applicant subsequently travelled to Kilinochchi in 2008 and that is where he claims to have been forced to dig bunkers for three months (A2, Transcript p 22, Line 5). It was the Minister’s submission that, based on the questions and answers in the interview, it was open to the Authority to find that the applicant returned to work shortly after sustaining the injury in Mallavi and therefore it was open to conclude that the injury was not “very severe”.
Secondly, it was submitted that the Authority did in fact consider the medical report and expressly referred to it in its Decision, noting that there was no other tangible evidence of the scar for the Authority to consider (CB 243 [22]).
Finally, in the applicant’s submissions, the solicitor for the applicant referred to the Home Office Report at paragraph [2.4.2] which detailed general points of risk towards Tamils in Sri Lanka in 2013. It was submitted that Mr Arujunan failed to bring the Court’s attention to paragraph [2.4.3] in which the author of the Report states that, since that country information was published, a new government had been appointed and there have been positive developments in Sri Lanka since the publication of the previous report (Home Office Report [2.4.4]). This supported the finding by the Authority that scaring was not then an issue for ethnic Tamils upon their return to Sri Lanka.
In relation to ground one of the applicant’s grounds of review, Mr Gardner submitted that the applicant’s claims as to the size of or severity of the scar were never advanced as a relevant factor before the delegate, rather, the mere existence of the scar was raised by the applicant and then considered by the Authority.
It was submitted that the Authority referred to available country information in the Decision which indicated that the presence of a scar “does not of itself put a person at risk unless the person is likely to be detained and stripped during interrogation for other reasons, and if the scarring was likely to be such as to raise suspicions” (CB 243-4 [22]). In addition, the Authority referred to the DFAT Report which “does not indicate that scarring causes any problems for Tamils” (CB 243-4 [22]).
The Court noted that the Authority accepted the delegate’s description of the scar in the Transcript as “a mark” and the delegate was otherwise not especially descriptive of it (CB 243-4 [22]). Mr Gardner submitted that one could presume that production of a photograph of a scar which was distinctive might require the delegate to record or obtain evidence of it. However, in relation to a scar that was described simply as “a mark” the Authority was entitled to simply rely on that observation as information and the country information, which said that the presence of scarring would not in of itself create a risk of harm to the applicant. There was nothing unreasonable or illogical about that reasoning or finding. This also supported the proposition that even if there was an error in not supplying information to the Authority about the scar, the error was not material to the outcome of the review. Further, there was nothing to suggest that the scar would become known to Sri Lankan authorities upon the applicant’s return to Sri Lanka as it was unlikely that the applicant was a person of interest.
Ground 1A of the applicant’s ground of review alleged that the Authority breached s 473CB of the Act. The solicitor for the Minister submitted that no such breach occurred and that the Secretary was only required to supply to the Authority information provided by the applicant or any other material in the Secretary’s possession relevant to the review. The sighting of the scar was not information provided or within the Secretary’s possession. It would have been different if the applicant provided a photograph of the scar (which the Secretary would be required to include in the brief to the Authority) or if the delegate took a photograph. If the photographs annexed to the applicant’s affidavit were produced to the Authority, that would be “new information” which the Authority was required to either accept or reject under s 473DD of the Act. However, no photographs were produced to the Authority. To the extent that there was “visual information” considered by the delegate that was information before the Authority and which it duly considered (CB 243-4 [22]).
It was submitted that the applicant’s reliance on BVC20 was misplaced. In BVC20 The Court was considering tangible evidence, unlike the present matter. Here, the applicant’s act of lifting his shirt to reveal the scar to the delegate was insufficient to constitute “material” for the purpose of s 473CB of the Act. In the absence of the applicant providing a photograph of the scar to the delegate, it cannot be said that there was material in the delegate’s possession that it failed to provide to the Authority. Therefore, there was no breach of s 473CB(1) of the Act.
The applicant’s third ground of review is that the Decision was vitiated by jurisdictional error because the Authority failed to consider the applicant’s claim that if he returned to Sri Lanka, he would be detained and harmed due to his failure to disclose his previous association with LTTE. The solicitor for the Minister submitted that the Authority did consider the applicant’s claim, which was subsumed in the greater generality of the Authority’s findings. Particularly, the Authority found that the applicant would not face harm upon return to Sri Lanka due to his low-level activities and low profile. It also considered that the “…security intelligence services frequently vetted the applicant during his many months in the IDP camp…and that what they discovered about him was not of any adverse interest to them” (CB 240 [15]). Therefore, to the extent that the claim was raised or apparent on the face of the materials, it was considered by the Authority and dismissed because the Authority found that the applicant was unlikely to be a person of interest to Sri Lankan authorities on his return.
Therefore, all three grounds raised in the Further Amended Application filed 10 April 2025 should be dismissed.
REPLY
The solicitor for the applicant submitted that the Transcript did not clearly indicate the time within which the applicant returned to work after the injury. The conclusion drawn by the Authority was therefore misplaced (CB 243-4 [22]). The facts before the Authority were that the applicant only performed the labour work in 2008 and not after sustaining the injury (A2, Transcript p 19, Line 19).
Mr Arujunan referred to the Authority’s acknowledgment of the medical report and submitted that the Authority did not expressly refer to the characterisation of the injury as causing a 60% loss of earning capacity or disability (CB 243-4 [22]). The finding that the injury was not severe was not available on the evidence.
Mr Arujunan rejected the Minister’s submission that BVC20 could be distinguished from the present case. Mr Arujunan referred to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58, submitting that the form of informational gap may vary and that the material is not limited or confined only to audio recordings or physical evidence.
Finally, the solicitor for the applicant again emphasised that the Authority erroneously relied on the Home Office Report and the DFAT Report in relation to the applicant’s scarring and whether it was likely to raise suspicion upon return to Sri Lanka. The Court took Mr Arujunan to paragraph [2.4.39] of the Home Office Report which provided that scarring could potentially corroborate an account of torture, noting that the applicant claimed to be unaware of exactly how he sustained the injury. The Court queried whether the existence of a significant scar may infer, or could be assumed to be, a product of torture that could also raise suspicion among the Sri Lankan authorities.
The solicitor for the applicant accepted that a scar may be taken to be the result of some form of torture. Mr Arujunan again submitted that the likelihood of the applicant being detained, and strip searched upon return to Sri Lanka was high and not low as the Authority found and Minister contended. He again emphasised that the Home Office Report acknowledged that a scar may put a person at risk if that person is likely to be detained and interrogated and “if the scarring was likely to be such as to raise suspicions” (CB 243-4 [22]).
CONSIDERATION
In this case the Court is mindful of the warning in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang), where the High Court said at 272:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
The Court in Wu Shan Liang also noted the practical constraints on judicial review. It was also said at 272 that:
…a court should not be “concerned with looseness in the language …nor with unhappy phrasing” of the reasons of the administrative decision-maker. …the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) the plurality said at [3]:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The Court in LPDT then explained at [9] and [10]:
[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.
[10] The inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.
In this application for judicial review the applicant identifies three grounds on which he says that the Authority erred in making the Decision. The first is the unreasonable failure to exercise the discretionary power to get information that the Authority considers relevant. This is a claim of unreasonableness in the process of making the decision and not unreasonableness in the end result.[2] It was not said by the applicant that the Decision as a whole was not one that no rational or logical decision-maker could arrive at on the same evidence (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS) at [130]–[131]). It was submitted that for the reasons expressed by the High Court in ABT17 at [3], the Authority had a duty in this case to consider whether further information was required and was bound to exercise that power or discretion reasonably. This was especially so where there was a gap in the evidence provided to the Authority. In this case it was evidence of the applicant’s scar. The delegate saw the scar but did not take a photograph or receive any other form of evidence recording it. This also occurred in ABT17. It was submitted that a decision-maker acting reasonably should have expressed good reason why it did not invite the applicant to an interview to observe the scar or sought further information about it. Especially so where the applicant claimed that he feared that the scar would, if revealed, amplify the risk of persecution and serious harm.
[2] The difference is relevant for the test of materiality as described by the High Court in LPDT at [6].
In ABT17 the Court said at [13] and [14]:
[13] However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview - his or her demeanour.
[14] An informational gap of that nature has potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority’s assessment of the referred applicant’s overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.” That has “long been recognised” and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour”.
GROUND ONE
This was not a case where the delegate made any finding about credibility based on the observation of the applicant’s scar. However, like in ABT17 the Authority did make findings about the applicant’s credibility without conducting another interview or observing the scar. The Authority made the following findings at paragraph [22] of the Decision (CB 243-4):
[22] I do not consider that the scar on the applicant’s chest creates any risk of harm for the applicant. There is no credible evidence before me that the authorities are aware of the scar or its cause, given my finding that the white van abduction and torture did not occur. The applicant claimed that his shirt had not been removed during interrogations and torture in the IDP camp. There is no medical evidence of the scar before me other than a report that records in the briefest of terms the dates of treatment for a chest injury. The chest scar was shown to the delegate and described by him as “a mark”; and given the evidence that the applicant was discharged from hospital after less than three weeks, then travelled around Killinochchi where he was then forced to dig bunkers, then Mulliativu, I do not accept that the injury was ‘very severe’ as submitted by the applicant’s former representative. Furthermore, the evidence before me does not suggest that even if the authorities did see the mark that it would cause them to have adverse suspicion of the applicant.
Those findings were not reasonably open to the Authority without exercising the discretion to observe the scar or require new information by further interview. It was erroneous for the Authority to make a positive finding of fact that the scar did not create a risk of harm to the applicant if he was to return to Sri Lanka, without first observing the scar. Further, it was erroneous to make any finding of credibility about the applicant’s claims based on the scar without observing it or receiving physical evidence of it. There was simply no evidence upon which to conclude that the applicant’s injury was not “very severe”, and it was unreasonable for the Authority to make any finding about the severity of the injury based on the information available. The medical report at CB 54 does disclose that the applicant was admitted to hospital on 22 July 2008 with a chest injury and discharged nineteen days later. There is a reference in the report that the applicant’s loss of earning capacity of disability was 60%. However, without further explanation or information about the injury it was not reasonably open to the Authority to conclude that the medical report or the applicant’s movements after discharge from hospital meant that the injury was not “very severe”, severe, minor or otherwise.
The findings in paragraph [22] that the evidence before the Authority “does not suggest that even if the authorities did see the mark that it would cause them to have adverse suspicion of the applicant” was not open in the absence of physical evidence or information about the scar (CB 243-4). It was unreasonable and illogical for the Authority to reach the conclusions reached in paragraph [22] of the Decision without seeking further information or conducting a further interview to fill what was clearly an information gap. The scar was central to one of the applicant’s claims to have a well-founded fear of persecution which the Authority was required to consider, and it was not legally reasonable for the Authority to make findings about that claim when conducting a review without information about it. The delegate’s observation that the scar was “a mark” was unhelpful but in circumstances where there was evidence in the country information that the existence of scarring may alert authorities to investigate the applicant’s involvement with the LTTE, required the Authority to make reasonable inquiries of the applicant or further interview him to obtain clarification, or at least a level of satisfaction such as to dismiss the claim as unconvincing or exaggerated. The absence of an explanation by the Authority of why further information was not required to fill the information gap was also an unreasonable exercise of the discretionary power. If the Authority was minded to dismiss the applicant’s claims about the scar without obtaining information about it, then the implied condition of reasonableness required the Authority to provide an evident and intelligible explanation for electing to take that course and no explanation was given in the Decision.
This error was also material. There is an interesting distinction raised in LPDT about the need for materiality when finding that a decision-maker has acted unreasonably. As Justice Nettle observed in ABT17 at [71]–[72] “materiality is bound up in the concept of legal unreasonableness”. His Honour advocated the two step, or two question approach now required to be applied by the decision in LPDT. The first step is to determine if there has been jurisdictional error and the second whether the error is material. However, in LPDT the Court at [6] referred to some cases where errors that will be jurisdictional irrespective of any effect that error might or might not have “on the decision that was made in fact”. In other cases, the Court said, “the potential for an effect on the decision will be inherent in the nature of the error” (LPDT at [6]). The Court gave two examples, the example of the first category of cases was where there is actual bias. The example given of the latter was “unreasonableness in the final result”. In such cases it was said that “the error necessarily satisfies the requirement of materiality”.[3]
[3] See also MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33]
Regardless of any distinction between unreasonableness in the final result and unreasonableness in the exercise of a discretionary power, this case is one where if the error had not occurred in failing to exercise the discretionary power in s 473DC of the Act there “could’ be a different result had the error not occurred. In my view no rational or logical decision-maker could arrive at the findings in [22] of the Decision based on the same evidence (LPDT at [32]; SZMDS at [130] per Crennan and Bell JJ and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39]).
The standard of reasonable conjecture as to the realistic possibility of a different outcome is undemanding (see Nathanson v Minister for Home Affairs [2022] HCA 26 at [32]-[33] per Keifel CJ, Keanne and Gleeson JJ). In this case, a decision-maker properly briefed with real evidence of the scar and evidence obtained by further interview to resolve any uncertainty in the applicant’s narrative, could have reached a different result about the criteria necessary to invoke the need for protection as a refugee or complementary protection.
The error identified by the applicant in ground one of the Further Amended application for judicial review filed 14 April 2025 was jurisdictional and material and should be redetermined by the Administrative Review Tribunal in accordance with law. There is no discretionary reason not to grant the relief sought.
It is unnecessary for the Court to consider grounds 1A and three of the Further Amended application for judicial review. However, I would also allow the Further Amended application on the basis of ground 1A which was a jurisdictional error due to a failure to comply with s 473CB(1) of the Act (BVC20 at [61]) As Justice Wigney observed in BVC20 at [78]:
[78] As for the supposed “practical ramifications” relied on by the Minister, there would in fact be no practical ramifications if decision-makers in the position of the delegate ensured that any material provided to them, including information which is provided in an intangible form, is recorded or retained in some form so that it can subsequently be given to the Authority. Indeed, the fairness of the statutory review scheme pursuant to Pt 7AA very much depends on such steps being taken. If such steps are not taken, the Authority may well end up conducting its review on the basis of incomplete material; that is, otherwise than on the basis of all of the material that was before the original decision - maker. Decision-makers who interview visa applicants in respect of potential fast track decisions should be particularly alive to the difficulties that may be encountered if they don’t take effective steps to record or retain all material that is provided to them during the course of the interview. As the Full Court observed in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222 at [66], the “nature of the review to be carried out by the Authority underlines the importance of the Authority being provided with all relevant documents”.
The interviewing officer was shown the applicant’s scar but took no step to record it or describe it with necessary detail so that the Authority could consider the applicant’s claim that he feared harm because of it, with the benefit of the information given to the delegate. The Authority did not have that information and fell into jurisdictional error. The Authority’s review of the decision to refuse the applicant’s visa application was not conducted in accordance with the statutory scheme in Div 3 of Part 7AA of the Act (see EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [28], [32] and [51] per Allsop CJ, Markovic and Steward JJ). Unlike the finding of Justice Wigney in BVC20, the error in this case was material as there could have been a different result had the Authority been provided with information about the scar in accordance with Div 3 of Part 7AA of the Act, or had the Authority acted reasonably to obtain it under s 473DC of the Act.
In relation to ground three, the Court does not agree that the Authority failed to consider the applicant’s claim that he feared, if forced to return to Sri Lanka, he will be detained on grounds that he did not come forward to identify himself as a person who had been affiliated with the LTTE. This claim was clearly made by the applicant in the outline of submissions prepared on behalf of the applicant dated 13 March 2017 (CB 101-123). It was identified by the Authority as a claim at paragraph [7] of the Decision (CB 237-8). The claim was also considered by the Authority when considering the claims of harassment and discrimination and rejection of the applicant’s claims to have a well-founded fear of persecution. At paragraph [16] of the Decision the Authority noted the applicant’s fear that the SLA has now discovered his assistance to the LTTE (CB 240). The Authority found at paragraph [29] of the Decision that the applicant will be investigated under the Immigrants and Emigrants Act 1949 (Sri Lanka) on his return and is likely to be questioned by police and may be subjected to a brief period of detention but that he was unlikely to suffer serious harm ( CB 247-8 [29], [33] and [36]). This was based on the general finding that the applicant was a low-level participant in LTTE activities and not a person of interest to Sri Lankan authorities (CB 240-2 [15], [17], [18] and [19]). Therefore, there was no error by the Authority in a failure to consider this claim. The Authority is not required to refer to every contention or every piece of evidence in a written decision (WAEE at [46] per French, Sackville and Hely JJ).
The Further Amended Application for judicial review is allowed. The Decision is quashed and a writ of mandamus shall be issued requiring the Administrative Review Tribunal to reconsider the applicant’s application for review in accordance with law.
On 13 May 2025 the name of the ministerial portfolio responsible for administration of the Act was changed to Minister for Immigration and Citizenship. The name of the first respondent will be amended accordingly.
COSTS
The Court is not aware of any circumstance that would warrant a departure from the usual order that costs follow the event and that the scale figure for costs be ordered. However, the Court will hear the parties as to the appropriate order for costs.
ORDERS
The name of the first respondent is amended to Minister for Immigration and Citizenship.
The decision of the Immigration Assessment Authority made 9 February 2018 be quashed.
A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review according to law.
The Court will hear from the parties as to the appropriate disposition of costs.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 23 March 2025
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