Bbi19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2021] FCCA 968

•

12 May 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 968

File number(s): SYG 597 of 2019
Judgment of: JUDGE HUMPHREYS
Date of judgment: 12 May 2021
Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection visa – whether the Authority failed to realistically engage with the issue of exceptional circumstances – whether the Authority failed to realistically engage with the applicant’s family link – whether jurisdictional error is made out – no jurisdictional error was made out – the application is dismissed.
Legislation:  Migration Act 1958 (Cth) s 473
Cases cited:

APH17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

DVG17 v Minister for Immigration and Anor [2018] FCCA 3842

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M174 v Minister for Immigration and Border Protection (2018) 353 ALR 600

Number of paragraphs: 53
Date of last submission/s: 28 April 2021
Date of hearing: 28 April 2021
Place: Parramatta
Counsel for the Applicant: Mr Cutler
Solicitor for the Respondents: Mr Taylor

ORDERS

SYG 597 of 2019
BETWEEN:

BBI19

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

12 MAY 2021

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. The applicant is a Tamil male from Jaffna, Sri Lanka. The applicant first arrived in Australia as an unauthorised maritime arrival on 11 September 2012. On 4 September 2015, the applicant lodged an application for a Temporary Protection visa. In a decision dated 22 June 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa.

  2. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. It is to be noted that there was a previous Authority decision of 31 July 2017 which was remitted back to the Authority for reconsideration by this Court in DVG17 v Minister for Immigration and Anor [2018] FCCA 3842.

  3. In a second decision dated 27 February 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

  4. The applicant now seeks judicial review of the second Authority’s decision.

    THE IMMIGRATION ASSESSMENT AUTHORITY DECISION

  5. The Authority’s decision is both comprehensive and detailed, running to 17 typed pages and 61 paragraphs.

  6. At paragraphs 4, and 5 of its decision, the Authority noted that it has had regard to information prepared by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”), and new material contained in a submission, including statements by the applicant’s siblings R and J who have made successful protection claims, and their actual or imputed links to the Liberation Tigers of Tamil Eelam (“LTTE”).  The Authority wass satisfied that it constitutes credible “in the sense of capable of being believed” personal information that was not previously known and had it been known, it may have affected the consideration of the applicant’s claims.  The Authority was satisfied that there were exceptional circumstances to consider this new information.

  7. At paragraph 6 of its decision, the Authority noted that the submission also contains new information that the applicant’s brother, S, has been found to be a Convention refugee in Australia.  The Authority noted that the statement appears to be a mere assertion and that there is nothing before the Authority to indicate the basis on which the applicant’s brother was granted refugee status, if in fact he was.  The Authority noted that the applicant has not made any specific claims as to why he would face any harm on account of his brother.  The Authority considered this information to be very much lacking in probative value in assessing the applicant’s claims and was not satisfied that there are exceptional circumstances to consider it.  The Authority was not satisfied that it was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.

  8. At paragraph 7 of its decision, the Authority noted that the submission also includes a statement that the applicant’s sister, T, is in the United Kingdom which is new information.  The Authority noted that this information is different from what the applicant stated in his entry interview and that he did not tell the delegate of this during his protection interview.  The Authority noted that the applicant had not claimed to fear harm due to any activities or imputed profile of his sister.  The Authority considered the statement to be completely lacking in probative value in assessing the applicant’s claims. The Authority was not satisfied that this information could not have been provided to the delegate before he made his decision, nor was it personal information, which was not previously known and had it been known may have affected the consideration of the applicant’s claims.  The Authority concluded that there were not exceptional circumstances to admit this new information.

  9. At paragraph 8 of its decision, the Authority noted that the submission also includes a statement that the applicant does not have a father. He is claimed to have disappeared due to his suspected political profile in Sri Lanka.  The Authority considers this to be new information.  The Authority notes that this information is somewhat inconsistent with the applicant’s statement at his entry interview that his father had been missing since 1989 and the claims of his brother R that their father had gone missing after refusing to join the LTTE and they suspected that it was the LTTE who were responsible.  On its face, the Authority noted that the new information does not support the applicant’s protection claims and is very much lacking in probative value in assessing his claims.  The Authority was not satisfied that this new information could not have been provided to the delegate before his made his decision.  Nor was the Authority satisfied that it was credible personal information which was not previously known and had it been known, may have affected the consideration of the applicant’s claims.  Accordingly, the Authority finds that there are no exceptional circumstances to justify considering this new information.  At paragraph 9 of its decision, the Authority rejects country information which predates the delegate’s decision.  At paragraph 10 of its decision, the Authority rejects a request for an interview.

  10. At paragraph 11 of its decision, the Authority notes a further recent submission which contains new information including copies of Facebook posts, and other information concerning the applicant’s siblings R and J.  The Authority was satisfied that there were exceptional circumstances justify considering this new information.  At paragraphs 13 through to 15 of its decision, the Authority determined that it would consider new country information which post-dates the delegate’s decision, however, rejects a report from the Human Rights Council which significantly predates the delegate’s decision.

  11. At paragraph 16 of the Authority’s decision, the applicant’s claims are set out.  These can be summarised as follows:

    •The applicant is a Tamil from the north but he was not involved in any fighting during the war and had no involvement with the LTTE other than some forced labour and having to give the LTTE some fish from his catch. However, in the closing stages of the war he assisted the Red Cross by ferrying wounded and injured persons from the shore to medical ships anchored out at sea.

    •When the war ended in 2009, he went to an Internally Displaced Persons (IDP) camp. He was questioned by the army and the Criminal Investigation Division (CID) on two or three occasions in 2009. They asked him about his involvement with the LTTE and why he had not crossed into government-controlled territory earlier. He was mistreated and assaulted during this questioning.

    •His younger brother, Uruthirathevan (“U”), was being held in a detention camp nearby. The applicant had some money from his fishing business and he gave this to U, to enable him to bribe his way out of the detention camp. U and another cousin disappeared from the detention camp and have not been seen or heard of since. The family believes they are both dead. After U’s disappearance, the applicant was called in once by the authorities and asked if/how he had helped U to escape the detention centre. He was not harmed or mistreated during this questioning.

    •In 2010 the applicant was arrested for riding a motorcycle without a helmet and was held in custody for 14 days. He has not claimed being questioned, mistreated or otherwise harmed during this incident and period.

    •One of his sisters, J, came to the IDP camp in around 2010 or 2011. At this time the applicant was allowed to leave the camp for work and he also provided an assurance that J would remain in the camp. However, one day he came back from work and found that J had escaped from the camp. She and her husband fled to Australia shortly after. The CID called the applicant in to question him about J and although he was not harmed, he was told that he could no longer leave the camp and had to surrender his identity documents.

    •Shortly after this, the applicant escaped from the IDP camp and returned to the Jaffna district. He obtained new identity documents and a learner’s permit and began working with his brother, R, as an ice-cream delivery driver. R had just been released from prison after serving a three year sentence and had to regularly report to the authorities.

    •R was abducted and tortured in 2012. As a result, R decided to flee Sri Lanka and arranged for the applicant to come with him. The applicant was then living in a High Security Zone and was scared of the authorities there so he agreed to come. Since they fled Sri Lanka, their mother has had to report to the police and court in relation to R and has been asked about R’s whereabouts.

    •R has been involved in Tamil community in Australia and sung songs about Tamil independence. His car has the licence plate “I (heart symbol) LTTE” and he has spoken to Tamil National Radio. All of these things are on Facebook. J has also been involved in yearly Martyrs day events.

    •The applicant’s wife has told J that in late 2018 the CID visited her and asked her about her and the applicant’s mother (who is now in Australia) and that in January 2019 that they also visited to ask about the whereabouts of R and the applicant. They threatened that if she did not co-operate they would put her in a camp.

    •His wife may seek revenge because he left his family.

  12. Paragraphs 20 through to 34 of the Authority’s decision, cover consideration of the applicant’s claims.  The Authority accepted that the applicant was at an IDP camp in 2009 and that it was plausible that he was questioned on a number of occasions.  The Authority notes however that the applicant was not charged with any offences, taken to a detention centre, identified for rehabilitation or the subject to any further questioning or processing in relation to his own limited activity with the LTTE, during the two years that he remained at the camp or in the further years before he left Sri Lanka.  The Authority concludes that the applicant was of no further interest to authorities after he was questioned in 2009.

  13. At paragraph 21 of its decision, the Authority accepts that the applicant may have been questioned about his sibling U’s sudden disappearance.  However, the applicant was not detained, or removed to a detention centre himself, or subject to any further questioning in relation to U at that time or in the three years before he left Sri Lanka.  The Authority concludes that the applicant is not of ongoing adverse interest to authorities in relation to the disappearance of U.

  14. At paragraph 23 of its decision, the Authority accepted that J, the applicant’s sister and her husband had been recognised in Australia as refugees.  The Authority accepts that when J left the camp, the applicant was called in for questioning.  The Authority took into account that the applicant states he left the camp without permission.  The Authority concluded that had he been suspected of anything, he would have been kept in some form of detention.  Further, the way in which the applicant left the camp, simply by driving out, indicates that he was of no particular interest to authorities at the time.

  15. Notwithstanding that the applicant claims to have escaped from the camp, he was able to obtain new identity documents and the driving permit.  At paragraph 25 of its decision, the Authority noted that whilst the applicant’s mother, provided a statement dated 18 December 2012, that people came to her house to make inquiries about the applicant, at his TPV interview the applicant stated that his mother had been asked questions about R but not the applicant.  The Authority considered at paragraph 26 of its decision, that it was implausible that if the applicant had escaped from the camp, he would not have been identified when he registered for new identity documents and was not questioned about his family.

  16. At paragraph 27 of its decision, the Authority concluded that there was nothing before it to indicate that authorities in Sri Lanka were aware that the applicant travelled with his brother R to Australia.  Even if they were, there was nothing before the Authority to indicate that shared travel gave rise to any sort of adverse profile of the applicant with authorities.

  17. At paragraph 28 of its decision, the Authority accepted that the Criminal Investigation Division (“CID”) visited the applicant’s wife in late 2018 and asked about the whereabouts of the applicant’s mother and they may have visited her again in 2019 and asked about the whereabouts of R.  The Authority does not accept however, that they asked about the applicant, given that they had not made any inquiries about him in the six years since he had departed Sri Lanka and given that he did not have an adverse profile with Sri Lankan authorities when he departed the country.

  18. At paragraph 29 of its decision, the Authority accepts that the applicant’s brother R has an adverse profile with Sri Lankan authorities in relation to the LTTE.  The Authority also noted that J has been involved in yearly martyr’s day events in Australia.  At paragraph 32 of its decision, the Authority concluded that there was nothing before it to indicate that the applicant himself has been involved in any activities since he arrived in Australia that would impute him with an LTTE or Tamil separatist political opinion.  The Authority considered that it was plausible and possible that the applicant would be asked questioned about R and J should he be returned to Sri Lanka, but it did not accept that the applicant would be suspected of any criminal offences or that he would have an adverse profile with the authorities or anyone else.  At paragraph 34 of its decision, the Authority concluded that the applicant was not of interest to the authorities at the time of his departure from Sri Lanka and that he is not become a person of interest since he left Sri Lanka.

  19. Paragraphs 35 of the Authority’s decision onwards, deals with country information.  At paragraph 41 of its decision, the Authority concludes that there would be no problem with the applicant returning to Sri Lanka, in that it was satisfied that he would be able to access accommodation and that his capacity to subsist as a fisherman would not be threatened.

  20. Paragraphs 42 of the Authority’s decision onwards, deal with claims regarding the applicant’s arrest and detention for failing to wear a motorcycle helmet, threats made by his wife and risks associated with returning to Sri Lanka as a failed asylum seeker who had departed illegally.  The Authority does not consider that the first two, constitute a real chance of harm.

  21. In relation to the applicant returning as a failed asylum seeker who had departed illegally, the Authority outlines country information.  At paragraph 50 of its decision the Authority accepts that the applicant may be questioned, and detained at the airport on the basis that he fled Sri Lanka illegally.  The applicant would be placed before a Court.  If the applicant pleaded guilty, he would have to pay a small fine.  If the applicant pleaded not guilty, he would be either released on his own surety or may be required to have a surety for his family.  The Authority was not satisfied that the circumstances surrounding him being placed before a Court and charged with departing Sri Lanka illegally constituted a real chance of serious harm.

  22. Paragraphs 57 through to 61 of the Authority’s decision deal with complimentary protection considerations.  For the reasons outlined above, the Authority was not satisfied that the applicant met the criteria for protection under the complimentary protection regime.

  23. Accordingly, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

  24. The Grounds of judicial review relied upon are set out in an Amended Application filed with the Court on 8 July 2017. They are as follows verbatim:

    Ground One

    The Authority failed to realistically engage with the issue of exceptional circumstances, construed narrowly and/or misapprehended what constituted exceptional circumstances and failed to intellectually engage with the issue of exceptional circumstances (CB196 IAA at [7]-[8]) (IAA at [6]).  The Authority has thereby committed jurisdictional error.

    Particulars

    i.The Authority erred in failing to realistically consider s473DD of the Act.

    ii.The Authority’s findings that the applicant submitted new information are erroneous as it misconstrued s473DD of the Act and erroneously excluded submissions.

    iii.The IAA erred in consideration of material in relation to the applicant’s brother (IAA at [6]).

    iv.The Authority’s findings are not based on the realistic consideration of the applicant’s circumstances.

    v.The Authority failed to engage with s473FB as to whether it limit consideration of other materials.

    vi.The Authority has committed jurisdictional error.

    Ground Two

    The Authority failed to realistically engage with the applicant’s family link.  The Authority has thereby committed jurisdictional error.

    Particulars

    i.The Authority had claimed that various close family members had LTTE links.

    ii.The Authority’s erred in failing to realistically consider LTTE links.

    iii.The Authority fell into jurisdictional error.

    Ground Three

    The Authority failed to misapplied the real chance test.  The Authority has thereby has thereby committed jurisdictional error.

    Particulars.

    i.The Authority’s erred in failing to realistically consider engage with real chance test.

    ii.The Authority’s fell into jurisdictional error

    THE APPLICANT’S SUBMISSIONS

  25. Counsel for the applicant noted that the applicant’s brother R, arrived in Australia on the same boat in 2012. R’s protection claims were accepted.  The applicant’s sister, J arrived by boat in 2011.  J’s protection claims were also accepted.  The applicant’s brother SR, arrived by boat 2010.  The applicant’s brother U, went missing in August 2009 and his whereabouts are unknown. The applicant’s sister T, currently resides in the United Kingdom. The applicant’s father has been missing since 1989 and his whereabouts are unknown.

  1. Several submissions were made to the Authority by the applicant’s legal representatives.  These submissions presented the Authority with information.  The Authority made different findings in relation as to whether or not it would accept the new information pursuant to


    s 473DD of the Act. The Authority found in a number of cases, that there were no exceptional circumstances to justify considering the new information.

  2. Ground one deals with paragraphs 6 to 8 of the Authority’s decision.  The Authority found that there were exceptional circumstances to consider the protection claims of siblings R and J.  It found however, that there were no exceptional circumstances to consider the claims made by sibling SR.  It is apparent from the applicant’s entry interview that sibling SR is a resident in Australia and arrived by boat in 2010.  Having found that there are exceptional circumstances to consider information in relation to the protection status of sibling R and J, it was submitted that there must also have been exceptional circumstances to consider sibling SR.

  3. The situation regarding sibling U and the father was also relevant to the applicants claim. Further, a submission was made on behalf of the applicant to the effect that “his widowed elderly mother has been placed in an adverse situation, at the hands of the Sri Lankan security forces due to her son namely R, who has recently been found to be a Convention Refugee in Australia”. The Authority has not dealt with his under s 473DD of the Act, or at all.

  4. In relation to ground two, the submission in relation to ground one is repeated.  A submission made on 13 July 2017 that the applicant does not have a father who disappeared because of his political profile, was found at paragraph 8 of the Authority’s decision, not to be exceptional circumstances and was not considered.  If that information was not considered, the information which was available was that the applicant’s father had disappeared in 1989 (which was in the applicant’s entry interview at Casebook 32) and there is a statement of sibling R, that the father was a member of the LTTE.

  5. As well as the applicant’s father, it was also apparent at the arrival interview, that the applicant had another brother, sibling U, who went missing in 2009.  Although the Authority referred at paragraph 40 of its decision, to the Department of Foreign Affairs and Trade (“DFAT”) country information, it found that the information did not support the applicant’s claim. The DFAT report stated that people had been detained, because of the family connections.

  6. It was submitted that the applicant clearly had family connections to the LTTE, including siblings R, J and S (and that the other sibling U is missing).  In addition, it appears that the applicant’s father (also missing) was involved with the LTTE.  There was also evidence of the activities in Australia of sibling R.

  7. It was submitted that the Authority did not give proper, genuine and realistic consideration to the applicant’s claim that he faced a real risk of harm, due to his family connections.

  8. In relation to ground three, the Authority considered country information which post-dated the original delegate’s decision.  That information included at paragraph 14 of the Authority’s decision, an International Truth and Justice Project (“ITPJ”)  report “Unstopped: 2016/17 Torture in Sri Lanka, July 2017’, which is referred to, as an authoritative source of information on human rights in Sri Lanka.  The only other reference to the ITJP report is at paragraph 35 of the Authority’s decision.  It was submitted that it is clear that the Authority placed substantial weight on the most recent DFAT report, which is at odds with the ITJP report.  The ITJP report stated that in 2017 both the military and police continued to abduct, unlawfully detain, torture and rape Tamils and, there are reports about family members and low level LTTE cadre’s being tortured.

  9. It was submitted that in circumstances, where there is a significant difference between two authoritative sources (with no way of knowing which, if either, is correct), then it is not open for the Authority to find that there was no chance of persecution.  It was submitted that in the circumstances of the current case, there was a “real chance” that the applicant will be persecuted on his return to Sri Lanka, because of his ethnicity and LTTE links.

    THE FIRST RESPONDENT’S SUBMISSIONS

  10. Ground one makes broad allegations as to the Authority’s treatment of new information at [6]-[8]. Despite being accompanied by 6 particulars, no details are given, as to how the Authority is contended to have erred. The grounds do not even identify a particular item of new information which was allegedly erroneously dealt with.

  11. The applicant’s written submissions narrow the contention in ground one, to the Authority’s treatment of two assertions contained in the submission to the Authority dated 13 July 2017, the first, relating to the applicant’s brother S, and the second, relating to the applicant’s mother.

  12. It was contended that the Authority erred by finding at paragraph 6 of its decision, that s 473DD of the Act was not satisfied, in respect of the assertion in the submission that S had been found to be a refugee in Australia.  The basis of this complaint, is that the Authority found that


    s 473DD of the Act was satisfied, in respect of information about two of the applicant’s other siblings, R and J.  It was submitted that, accordingly, “there must also have been exceptional circumstances to consider the status of S”.  This argument misconceived the operation of


    s 473DD of the Act. Before any new item of information can be considered, it must satisfy the requirements of s 473DD of the Act.  This is what the Authority did, in relation to the new information provided about the applicant’s siblings in the submission dated 13 July 2017.  The new information concerning R and J was contained in detailed statements prepared for the purpose of the protection visa applications.  The Authority accepted that the details of those statements was rationally capable of supporting a finding that R and J were persons to whom Australia might have protection obligations and were relevant to the applicant’s claims.  By contrast, the new information concerning S was one sentence in the submission as follows:

    “His brother S has been found to be a Convention Refugee in Australia, and he has not been to Sri Lanka yet.’

  13. The meaning of the last phrase ‘and has not been to Sri Lanka yet’ is unclear. The Authority found that all of this information could have been provided to the delegate prior to the delegate’s decision (in other words s 473DD(b)(i) of the Act was not met), but found that the information concerning R and J was credible personal information which was not previously known and, had it been known it may have affected the consideration of the applicant’s claims (in other words s 473DD(b)(ii) of the Act was met). It was open to the Authority to find that in relation to S, s 474DD(b)(ii) of the Act was not met in that there was nothing to indicate the basis upon which S would have been granted a protection visa, and nothing to indicate why the applicant would face any harm on account of S.

  14. The complaint concerning the applicant’s mother is also misconceived, because that information was not new information for the purpose of s 473DD of the Act.  The information in question is one sentence in the submission dated 13 July 2017 as follows:

    His widowed elderly mother has been facing adverse situation at the hands of the Sri Lankan security forces due to her son, namely R, who has recently been found to be a Convention refugee in Australia.

  15. The applicant had provided a statement from his mother dated 18 December 2012 to the delegate, in which he claimed to have been visited by Armed Forces and questioned.  At the protection interview, the applicant claimed that the authorities continued to threaten his mother and they had questioned her about R.

  16. As the information was not new information, it was not subject to the test in s 473DD of the Act and was properly considered at paragraph 25 of the decision record.

  17. Although there is no error, in any event, the applicant has not explained how these contended errors could realistically have made any difference to the Authority’s decision. Given the Authority’s view at paragraph 6 of its decision that the information about S was “very much lacking in probative value in assessing the applicant’s claims” and the fact that the Authority did actually consider all the available information about the applicant’s mother, it is not clear how different findings under s 473DD of the Act could have led to a different result.

  18. Ground two was another broad assertion that the Authority “failed to realistically engage” with the information about the applicant’s ties.  Again, the particulars failed to identify any specific error in the Authority’s reasons.  The applicant’s written submissions imply that, because there was some evidence before the Authority that members of the applicant’s family had LTTE connections, the Authority was bound to find that the applicant faced a real risk of serious or significant harm by virtue of his relationship to them.  At its highest, this complaint seeks impermissible merits review of the Authority’s decision.  The Authority accepted that the applicant’s sister J, her husband, the applicant’s brother R, and the applicant’s father had links to the LTTE.  However the Authority gave cogent reasons for its finding, based on its assessment of country information about the applicant’s own activity and experience in Sri Lanka prior to his departure, that the applicant did not face a real chance of harm by virtue of his familial ties.

  19. Ground three is again a bare assertion that the Authority “misapplied the real chance test”.  The applicant’s submissions assert that this contended misapplication arose because of the Authority’s treatment of two items of country information which are said to be at odds with each other.

  20. Both the choice and the assessment of the weight to be given to country information are matters for the Authority.  The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Authority.  Further, it is neither alleged nor apparent that the Authority made any illogical or irrational finding on the basis of its assessment of country information.  Further, no connection between the Authority’s treatment of country information in its application of the real chance test has been established.

    CONSIDERATION

  21. Ground one is a somewhat broad and at times confused statement, in that it alleges that the Authority failed to realistically engage with the issue of exceptional circumstances, yet in the particulars, it makes allegations that the Authority failed to realistically consider s 473DD and or s 473FB of the Act.

  22. In relation to the consideration of s 473DD, a fair reading of the Authority’s reasons indicates that it properly engaged with its consideration of the material pursuant to the section as required by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11]-[12].

  23. In each case, at paragraphs 6 to 8 of its decision, the Authority sets out the relevant wording from s 473DD(b)(i) and (ii) of the Act, and finds that the consideration in the subsections are not engaged. The manner in which the Authority considers the information need not be formulaic, and no jurisdictional error will occur, provided that the Court can be satisfied from the language used, that the elements of s 473DD (2) of the Act have been engaged with: (see: APH17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]). Further, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. It need not be unique or in unprecedented, or very rare, but it cannot be one that is regularly, routinely or normally encountered: (see: Plaintiff M174 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [87]-[88]).

  24. Based on the material was provided, particular (v) in relation to s 473FB of the Act does not appear to have been pursued.  Ground one has no merit.

  25. Ground two was again a broad assertion that the Authority “failed to realistically engage” with information about the applicant’s family ties.  The Court notes that the particulars failed to identify what specific error is apparent in the Authority’s reasons.  The Court notes that the Authority in its reasons comprehensively dealt with the applicant’s familial ties, including those of his siblings, but formed the view that these were insufficient to give rise to an adverse profile of the applicant with Sri Lankan authorities.  The Authority concluded that the applicant’s own profile was not such that he was adverse interest to Sri Lankan authorities either in the years leading up to his departure and post departure from Sri Lanka.  There is nothing illogical, irrational or legally unreasonable in those findings and they were open to the Authority on the evidence that was before it and for the reasons it gave.  If anything, ground two seeks to engage the Court in impermissible merits review. Ground 2 has no merit.

  26. In relation to ground three, it is well-established that the country information with to which the Authority has regard and the weight it gives to that information is a matter for the Authority: (see: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10) (“NAHI”).  The applicant complains that the Authority placed substantial weight on the most recent DFAT report which was at odds with an earlier ITJP report.  The applicant submits that where there is a significant difference between two authoritative sources (with no way of knowing which if either is correct) then it is not open for the authority to find that there is no chance of persecution.

  27. This reasoning is faulty in that it is clear that the Authority gave greater weight, as it was entitled to do, to the more recent DFAT report as compared to the ITJT report.  That choice was open to the Authority and there was nothing legally unreasonable, irrational, or illogical in the Authority so doing.  By preferring some information to other information it did not misunderstand the ‘real chance’ test. It simply found on the information it placed weight on, that there was not a real chance that the applicant would face serious harm on his return. This is a factual matter which the Court cannot substitute its view on, even if it had a different view to the Authority: (see: NAHI at [11]-[13]). Ground three reveals no jurisdictional error.

    CONCLUSION

  28. Accordingly, the application is dismissed.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       12 May 2021

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