BCY17 v Minister for Immigration

[2018] FCCA 2044

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2044

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) not to grant applicant Temporary Protection visa – whether, given the parts of the applicant’s claim it accepted, it was reasonably open to the Authority not to be satisfied the applicant would face a real risk of significant harm if he were to return to his country of nationality – whether it was reasonably open to Authority to rely on certain country information based on risk profiles which the applicant did not entirely share – whether it was reasonably open to the Authority not to consider “new information” - no jurisdictional error.

Legislation:

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

Cases cited:

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

BVZ16 v Minister for Immigration & Anor [2017] FCA 958
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Applicant: BCY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 800 of 2017

Judgment of: Judge Manousaridis

Hearing date: 19 July 2018

Date of Last Submission: 19 July 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Counsel for the First Respondent: Mr T Riley

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 800 of 2017

BCY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Sri Lanka, seeks judicial review of a decision of the Immigration Assessment Authority (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (Protection visa).

Background

1. The applicant left Sri Lanka in 1990.[1] The applicant lived in a refugee camp in India for 23 years before he entered Australia.

   [1] CB223, [26]

2. The applicant applied for a Protection visa on 5 August 2016.[2] A delegate of the Minister refused that application on 30 December 2016, and the decision was referred to the Authority on 9 January 2017. The Authority affirmed the decision not to grant the applicant a protection visa on 21 February 2017.

   [2] CB79

Claims for protection

1. The applicant stated his claims for protection in a statement (Statement) that accompanying his application for a Protection visa. The applicant there claimed as follows:[3]

   [3] CB70-72

   a)The applicant was born in a place off Trincomalee on 15 July 1966. The applicant is married. His wife and daughter are in India.

   b)The applicant was a farmer when the ethnic conflict in Sri Lanka became very tense and resulted in the emergence of liberation groups.

   c)In 1985 the LTTE (being the Liberation Tigers of Tamil Eelam) approached the applicant and asked him to join them to fight. At that time the applicant was living with his aunt and her children.

   d)Because the applicant did not want to fight, the LTTE asked him to transport goods for them. The applicant had no other option because he feared that if he did not do anything for the LTTE they would retaliate in some way.

   e)At that time the applicant had a bullock cart, and the LTTE asked him to transport rice and other goods from a designated house and other places to a place that was under the LTTE’s control.

   f)The applicant transported goods in the night because it was impossible to transport goods during the day. The applicant had to travel for approximately 15 kilometres. That was very dangerous because the Sri Lankan security forces were hunting and killing persons whom they suspected of being in the LTTE. The applicant’s cousin also transported goods for the LTTE.

   g)There was an army camp near the applicant’s village. The Army often raided the Applicant’s village and killed LTTE suspects.

   h)The applicant transported goods once or twice a week using his bullock cart for approximately two or three years. As the years passed the situation became very tense and there were more killings of young Tamils like the applicant in his province in the North.

   i)In two separate army (SLA) raids in 1987 the applicant’s two cousins with whom he lived were shot dead by the army. When the SLA came the applicant managed to escape. After these killings the applicant left his village and went to a place where he stayed. The applicant was very fearful that he would be hunted and killed.

   j)In July 1987, after the Indian army came to Sri Lanka, the applicant thought he would be safe. But fighting broke out again between the Indian Army and the LTTE. After the Indian Army withdrew in 1990, fighting recommenced between the LTTE and the Sri Lankan security forces. The Sri Lankan forces began to kill young people like the applicant in his area in retaliation for deaths caused by the LTTE.

   k)Around September 1990 the applicant’s mother asked him to go to his uncle in Mullaithivu. The applicant did so, and from Mullaithivu he left took steps to leave Sri Lanka illegally and travelled by boat to India.

   l)The applicant remained in India for twenty-three years in a refugee camp before coming to Australia.

   m)The applicant cannot return to India because he was never a citizen of that country because restrictions were imposed on him as a refugee. He did not have a passport, and during major political events the applicant’s movements were curtailed. When the applicant worked, the authorities took punitive measures against him by curtailing assistance to him.

   n)The applicant cannot return to Sri Lanka because he has not been there for twenty-three years. If he returns now he will be seen as a stranger in his own village, which will cause the authorities to investigate him. It is possible that after his return authorities will learn the applicant had assisted the LTTE by transporting goods for them. The authorities will also learn that the applicant’s two cousins were shot dead, and for that reason they will form the view that his cousins were shot because they were LTTE members.

   o)It is likely the applicant will come to the attention of the Sri Lankan security forces because they killed his cousin’s brother believing they were killing the applicant (they later found out they had not killed the applicant). The applicant’s “cousin’s sister” was killed as political revenge on the applicant because when the Sri Lankan security forces came in search of the applicant he was hiding, and she had a familial relationship with the applicant who was suspected of LTTE connections.

   p)The applicant cannot relocate within Sri Lana because he does not know the Sinhalese language, he fled Sri Lanka illegally and he will be questioned at Colombo airport where, when checks are undertaken, authorities will learn of the applicant’s past. At the airport the CID (being the Sri Lankan Criminal Investigation Department) will also closely scrutinise and question the applicant because he is an ethnic Tamil from off Trincomalee and has been absent from Sri Lanka for a significant period of time. It is likely the Sri Lankan security forces will discover the applicant’s background and his connection to the LTTE for which he will be prosecuted. He will also be prosecuted for his illegal departure as a Tamil male from the East with an actual or suspected profile.

2. The applicant made the following additional claims during his protection visa interview (PV interview):[4]

   a)The applicant transported weapons for the LTTE.

   b)The CID harassed the applicant’s family since his arrival in Australia and are still looking for him; and, while looking for him the CID assaulted his aunt on four or five occasions.

   [4] CB217, [6]

The Authority’s Reasons

1. The Authority accepted the applicant fled to India around September 1990, that he lived there until he left in 2013 to travel to Australia, and that he is a national of Sri Lanka.

Findings on applicant’s particular claims

1. The Authority also accepted the applicant had transported goods for the LTTE once or twice a week for approximately two years from 1985 until May 1897;[5] that in May 1987 the applicant’s cousin, K, was killed by the SLA, and that five days later the SLA also killed the applicant’s cousin, A.[6]

   [5] CB218, [10]

   [6] CB219,[14]

2. The Authority was not satisfied, however, that the applicant transported weapons for the LTTE, or that his cousins were killed because of the applicant and his role in the transport of LTTE weapons as he claimed at the PV interview;[7] or that the SLA killed the applicant’s cousins because the SLA thought they were killing the applicant, or as political revenge on the applicant because he was hiding;[8] or that as recently as December 2016 the Sri Lankan authorities visited the applicant’s aunt asking after the applicant and assaulted her and had done so on a number of previous occasions.[9] The Authority relied on a number of matters.

   a)The applicant did not claim in his Statement and in the initial part of his PV interview that he transported weapons. The applicant first made that claim when the delegate, after having heard from the applicant that he transported rice, sugar, and “lots of items”, asked the applicant why he would be targeted given that his involvement with the LTTE was in a non-combatant role.[10] The Authority was not satisfied the applicant was confused when he was asked to describe what he transported for the LTTE, or that he failed to mention he transported weapons out of fear.[11]

   b)The Authority considered evasive the applicant’s response to being asked how he knew the authorities were targeting him rather than his cousin, and whether anyone else had provided assistance to LTTE; and the applicant was unable to provide any basis for the claim that the SLA mistook K for the applicant.[12]

   c)On the applicant’s evidence the applicant remained in his village for five days after the SLA killed K in the mistaken belief they were killing the applicant, and it was only five days later that the SLA came looking for the applicant and, on finding out he left, the SLA killed the applicant’s cousin. The Authority considered it implausible that, if the SLA knew the applicant was involved with the transport of goods for the LTTE, the applicant would have remained in the village for five days after the death of K and not be caught.[13]

   d)The Authority was not satisfied the Sri Lankan authorities were ever aware he was involved in transporting goods for the LTTE. The Authority relied on its assessment that the applicant’s response was evasive to the delegate’s question of whether he had any direct interactions with the authorities during the two years he transported goods for the LTTE.[14]

   e)The Authority found that it followed from not accepting the above claims that the Authority also did not accept that it was plausible that some twenty-seven years after leaving Sri Lanka the applicant would be a person of interest to the authorities and that the authorities would, therefore, have targeted the applicant’s aunt looking for him in 2016.

   [7] CB218, [11]

   [8] CB219, [15]

   [9] CB220, [19]

   [10] CB218, [13]

   [11] CB219, [15]

   [12] CB219, [16]

   [13] CB219, [17]

   [14] CB219, [18]

Claims based on applicant’s Tamil ethnicity/imputed political opinion generally

1. The Authority was not satisfied the applicant was at risk of serious harm from Sri Lankan authorities on the basis of his actual or imputed political opinion.[15]

   a)First, the Authority referred to the 2012 UNCHR Guidelines, noting that it was of the opinion that Tamils originating from an area that had previously been controlled by the LTTE does not in itself result in the need for international refugee protection, but that there may be a need if a person identifies as having certain links to the LTTE, including the supply and transport of goods for the LTTE. The Authority, however, found that the Sri Lankan authorities were not aware the applicant had ever transported goods for the LTTE.[16]

   b)Second, the Authority referred to country information that indicated that Sri Lankan authorities maintain sophisticated intelligence databases on former LTTE members and supporters, including “stop” and “watch” lists. The Authority was not satisfied the applicant’s name is on either of such lists and, for that reason, would be identified as an LTTE member or supporter. Further, even if on his return to Sri Lanka it might come to light the applicant had transported goods for the LTTE, there was no information before the Authority that suggested that a person who performed low level work for the LTTE 27 years ago is at risk of harm now.[17]

   [15] CB221, [21]

   [16] CB220, [20]

   [17] CB221, [21]

2. On the basis of country information the Authority was also not satisfied that the applicant is at risk of harm on return to Sri Lanka because of his Tamil ethnicity. The Authority relied on country information that it found showed, among other things, that although Tamils have suffered discrimination on the basis of their ethnicity, the Sirisena government has implemented “a number of confidence-building measures to address the grievances of the Tamil community”; that the president appointed the Office of Unity and reconciliation to coordinate the government’s efforts towards reconciliation; and that Sri Lankan Tamils who had sought refuge in India in the civil war are returning in greater numbers and with confidence about the country situation in Sri Lanka.[18] The Authority noted there was no information before it that showed that, without more, simply having resided in India for a lengthy period is a risk factor for mistreatment on return.[19]

   [18] CB221-222, [23], [24]

   [19] CB222, [24]

Claim based on illegal departure/status as a returned asylum seeker

1. The Authority accepted that the applicant left Sri Lanka unlawfully and that, on his return, he would be perceived as an illegal departee and a returning asylum seeker from the West.[20] Relying on country information, the Authority found that on his arrival the applicant will be investigated at the airport; charged with the offence of illegal departure; held in custody at the airport while investigations are completed, and potentially detained over a weekend pending an appearance before a magistrate; if the applicant pleads guilty the applicant will be fined and released, or, if he pleads not guilty, the applicant will be held on remand pending bail and, if later found guilty, he will be fined for the offence. The Authority found that a fine does not amount to serious harm, and despite Sri Lanka’s prisons being below international standards, a brief period of detention such as that to which the applicant might be subject would not amount to serious harm.[21]

   [20] CB223, [26]

   [21] CB223, [29]

Conclusion

1. The Authority was not satisfied that, given the applicant’s profile, and taking all of the claims it accepted together, there is a real chance the applicant will suffer serious harm on his return to Sri Lanka. For those reasons, the Authority concluded the applicant does not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act 1958 (Cth) (Act).[22] Further, relying on findings it had already made, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm, and therefore found that the applicant does not meet the complementary protection criteria provided for by s.36(2)(aa) of the Act.[23]

   [22] CB226, [42]

   [23] CB226, [43]

Grounds

1. The applicant’s grounds of application stated in the amended application filed on 10 July 2017 are as follows (errors in original):

   The Immigration Assessing Authority has committed a jurisdictional error in my case as it declined to exercise jurisdiction as the factual precedent for its jurisdiction does exist.

   My ground: Jurisdictional error

   Particulars of my grounds:

   The IAA has accepted I was born in Trincomalee district of the eastern province of Sri Lanka. I am an ethnic Tamil from the area of formerly held by the LTTE. I was approached to work for the LTTE. I transported goods for the LTTE. My cousins were killed by the Sri Lankan security forces.

   There is evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar  circumstances  is still  risk of serious  harm  at the hands  of  Sri  Lankan  authorities  but the IAA  has declined  to  exercise  its  jurisdiction  on  the  accepted  facts  and  said  a  reason  to  decline  its jurisdiction  as  I  made  additional  refugee  claims  at  my  protection  visa  interview  that  I  transported weapons to the LTTE and my family was harassed and assaulted my aunt in Sri Lanka.

   The IAA’s reasoning appears to give more weight to the evidence that I made additional refugee claims at my protection visa interview that I transported weapons to the LTTE and my family was harassed and assaulted my aunt in Sri Lanka and to disregard other accepted evidence that I am an ethnic Tamil from the area of formerly held by the LTTE. I was approached to work for the LTTE. I transported goods for the LTTE. My cousins were killed by the Sri Lankan security forces.

2. At the hearing before me the applicant, who is not legally represented, handed up a document titled “The Applicant’s Outline of Written Submissions” (Applicant’s Written Submissions).[24] The applicant also made some submissions before me that repeated the substance of what he stated in the Applicant’s Written Submissions.

   [24] Which I marked “MFI1”

Ground stated in amended application

1. The ground stated in the amended application makes two claims. The first is that there was before the Authority country information that showed that Tamils in the position of the applicant still faced a risk of serious harm, but the Authority declined to exercise jurisdiction “on the accepted facts”. By this I understand this part of the ground to be claiming that there was before the Authority country information on the basis of which the Authority could not but have concluded that Tamils having the experiences the Authority accepted the applicant had faced the risk of serious harm.

2. The ground does not identify the country information on which it relies. Relevant to identifying the country information to which the ground in the application is intended to refer are the claims made in the Applicant’s Written Submissions. One of the claims the applicant there makes is that the Authority failed to consider two of the three reports the Authority identified were submitted to the Authority by the applicant’s representative. One is a report titled “DFAT Country: Sri Lanka” dated 16 February 2016. The Authority noted this report was before the delegate; that it was, therefore, not new information; and the Authority said it had regard to it.[25] Of the two other reports, one is titled “DFAT Thematic report: People with Links to the Liberation Tigers of Tamil Eelam” dated 3 October 2014,[26] and the other is titled “Country Information and Guidance Sri Lanka: Tamil separatism” dated August 2016.[27] The Authority found that each of these two reports (Excluded Reports) was “new information” but, for reasons I will later set out, the Authority said there were no exceptional circumstances that would justify the Authority considering the Excluded Reports. The Authority’s so concluding is the subject of the challenge made in the Applicant’s Written Submissions. In these circumstances it is reasonable to infer that the information to which the ground stated in the application is intended to refer is the country information that was before the Authority other than the Excluded Reports.

   [25] CB216, [4]; footnote 1

   [26] CB216, [4; fn.2]. A copy of the report is at CB147

   [27] CB216, [4; fn.2]. A copy of the report is at CB162

1. So read, the effect of this part of the ground stated in the amended application is that, given the country information that was before it and which it considered, and given those parts of the applicant’s claims the Authority accepted, it was not reasonably open to the Authority to conclude the applicant did not face a real risk of harm because of his Tamil ethnicity. I do not agree. My summary of the Authority’s reasons for decision identifies the items of country information on which the Authority relied for concluding it was not satisfied the applicant faced a real risk of harm because of his Tamil ethnicity; and those are matters on which it was reasonably open to the Authority to rely for so concluding. This part of the ground stated in the amended application, therefore, fails.

2. The second claim made in the ground stated in the amended application is that the Authority gave more weight to the applicant’s having made the additional claims that he transported weapons for the LTTE and that his family was harassed and his aunty assaulted, than to the evidence the Authority accepted. This does not disclose any jurisdictional error. It was within the jurisdiction of the Authority, and it is not within the jurisdiction of this Court, to determine the weight that should be given to evidence that was before the Authority that was otherwise rationally probative of any of the issues the Authority was required to determine.

Applicant’s Written Submissions

1. The Applicant’s Written Submissions makes a number of claims.

Reliance on UNHCR’s opinion

1. The first is that the Authority “erred in not being satisfied that I had the risk profile of a real or imputed connection to the LTTE as identified in the 2012 UNHCR guidelines as a person at risk in Sri Lanka”. The claim appears to be that it was not open to the Authority to rely on the opinion contained in the UNHCR Guidelines that Tamils originating from an area that had previously been controlled by the LTTE does not in itself result in the need for international refugee protection; and it was not open to the Authority to do so because that opinion was predicated on their being no links between the LTTE and Tamils originating from an area that had previously been controlled by the LTTE, but the Authority accepted the applicant did have a link with the LTTE, namely, transporting goods for the LTTE.

2. The Authority was aware of the applicant’s links to the LTTE, yet it was not satisfied that such a connection gave rise to a real risk of harm to the applicant, first, because the Authority was satisfied the Sri Lankan authorities are unaware of the applicant’s connections and, second, there was no information before the Authority that suggested that a person, such as the applicant, who performed low level work for the LTTE 27 years ago is at risk of harm now. I am not satisfied it was not reasonably open to the Authority rely on the matters on which it did rely, including the 2012 UNCHR Guidelines, to conclude it was not satisfied the applicant would be at risk of serious harm from Sri Lankan authorities if he were to return to Sri Lanka, even though the Authority had accepted the applicant had transported goods for the LTTE some 27 years ago.

3. This part of the Applicant’s Written Submissions, therefore, discloses no jurisdictional error by the Authority.

Section 473DD

1. The Applicant’s Written Submissions claims that the Authority misconstrued or misapplied s.473DD of the Act, and “erred in holding that the IAA must not consider the new information and was not satisfied that there are exceptional circumstances”. That is a reference to the Authority’s concluding that the Excluded Reports constituted new information, but there were no exceptional circumstances that would justify the Authority to consider the Excluded Reports. The Applicant’s Written Submissions state as follows:

   The IAA did not read, nor consider the new information (“of the other two reports”) given to the IAA. The IAA’s failure to consider the new information (“of the other two reports”) was crucial to my case and to my IAA review.

   The IAA did not adequately explain in my IAA’s decision as to why there is not an exceptional circumstance as per S473DD(a)(i) to accept my new information.

   S473DD(b)(i) is applicable to me. My new information has satisfied the threshold in S473DD(b)(i).

   My new information satisfied the S473DD(b)(ii) threshold as the new information is credible and affects my IAA review/consideration.

   The IAA should have considered the new information and it failed to do so.

   I understand that this court review is not a merit review and it cannot admit any new evidence but I have a good case on the facts before the IAA.

2. These statements may reasonably be taken to make two claims. The first is that the Authority did not adequately explain why it was not satisfied there were exceptional circumstances to justify its having regard to the Excluded Reports. The second is that the Excluded Reports satisfied s.473DD(b)(ii) of the Act. To be in a position to assess these submissions it will be necessary to say something about s.473DD, and to set out the Authority’s reasons for concluding no exceptional circumstances applied to the Excluded Reports.

3. Section 473DD of the Act provides as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: 

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and 

   (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: 

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or 

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

4. The expression “new information” is defined in s.473DC(1) of the Act to mean “any document or information that . . . were not before the Minister when the Minister made the decision under section 65; and . . . the Authority considers may be relevant”. And the notion of “exceptional circumstances” in the context of s.473DD was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[28]

   Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement.  The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”:  “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

   Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant.  In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

   [28] [2018] HCA 16 at [30] and [31] (footnote omitted)

5. The operation of s.473DD of the Act has been considered by the Full Federal Court on a number of occasions, the most recent being in Minister for Immigration and Border Protection v CQW17.[29] The effect of what the Full Federal Court said in CQW17 is that before the Authority may consider “new information” it must be satisfied of the matters stated in both s.473DD(a) and of either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act. In other words, the requirements of s.473DD(a) and either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act are cumulative. That the requirements of these two paragraphs are cumulative does not, however, imply that the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraph (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16 v Minister for Immigration & Anor[30] in a passage that has been approved by the Full Federal Court on four occasions:[31]

   The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.

   [29] [2018] FCAFC 110

   [30] [2017] FCA 958 at [9]

   [31] This passage was set out with approval by the Full Federal Court in CQW17 at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”

6. Next, I turn to what the Authority did in relation to the Excluded Reports; and what it did is revealed in paragraph 4 of its reasons:

   Of the other two reports, they were not before the delegate and are not new information. The reports were published prior to the delegate’s decision and the delegate made it clear at the conclusion of the interview that any information the applicant provided to the Department before a decision was made would be considered. The applicant has been legally represented throughout the protection process and his representative was present throughout his TPV interview. Further, I note that the versions of each of the other two reports provided by the applicant (one of them a later version) were before the delegate. In the circumstances, I am not satisfied there are exceptional reasons to consider this new information.

7. Next to the words “two reports provided by the applicant” the Authority inserted a footnote in which the Authority identified the Excluded Reports. The Authority also added a footnote next to the words “(one of them a later version) were before the delegate”. In that footnote the Authority said:

   The DFAT Country Information Report of December 2015 is expressed as replacing the 16 February 2015 and October 2014 Thematic report on People with Links to the Liberation Tigers of Tamil Eelam. The version of the UK Home Office report, “Country Information and Guidance Sri Lanka: Tamil separatism”, considered by the delegate and dated 19 May 2016 is identical to that provided by the applicant save for clarification of the policy summary at paragraph 3.1.2.

8. I return to the claims the applicant makes in the Applicant’s Written Submissions, the first of which is that the Authority did not adequately explain why it was not satisfied there are exceptional circumstances to justify considering the Excluded Reports. Although the Authority did not give detailed reasons, the reasons it did give for concluding it was not satisfied there were exceptional circumstanced to justify its considering the Excluded Reports are clear enough: one of the Excluded Reports was an older version of a document that was before the delegate; and the other Excluded Report, although a later version of a document that was before the delegate, contained an immaterial change. In short, the Authority was not satisfied there were exceptional circumstances to justify its considering the Excluded Reports because the Authority was not satisfied the Excluded Reports contained any information that in substance was additional to the information that was before the delegate. I am not satisfied, therefore, that, as submitted by the applicant, the Authority did not adequately explain why it was not satisfied there are exceptional circumstances to justify considering the Excluded Reports.

9. The second claim the applicant makes in this part of the Applicant’s Written Submissions is that the “new information” – being, as I have found, the Excluded Reports – “satisfied the threshold” provided for in s.473DD(b)(i) of the Act, the new information was credible, and it affected the Authority’s review. The claim that the Excluded Reports satisfied s.473DD(b)(i) of the Act is incorrect. As the IAA observed, the Excluded Reports were published before the delegate made his decision.[32] Further, whether or not the Excluded Reports contain information that is credible, such information is not, and it was not reasonably open to the Authority to consider such information to be, “personal information” within the meaning of s.473DD(b)(ii) of the Act. In any event, the Authority was not satisfied there were exceptional circumstances to justify its considering the information contained in the Excluded Reports; and it arrived at that conclusion after it had considered the contents of the Excluded Reports. For that reason it could not be said the Authority made an error of the sort the Full Federal Court found the Authority made in CQW17.

   [32] CB216, [4]. The delegate made his decision on 30 December 2016. The DFAT Thematic report: People with Links to the Liberation Tigers of Tamil Eelam” is dated 3 October 2014; and the “Country Information and Guidance Sri Lanka: Tamil separatism” is dated August 2016.

10. This part of the applicant’s claim also fails.

Submissions at the hearing

1. At the hearing before me the applicant made short submissions that repeated the effect of the submissions he made in the Applicant’s Written Submissions. For that reason, it is not necessary for me to separately address what the applicant said to me at the hearing.

Conclusion

1. The applicant has failed to establish the Authority made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 July 2018