BYT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 476

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 476

File number: MLG 920 of 2017

Judgment of: JUDGE LADHAMS

Date of judgment: 20 June 2022

Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority erred in applying s 473DD of the Migration Act 1958 (Cth) by failing to consider the criteria in ss 473DD(b)(i) and (ii) before considering whether there were any exceptional circumstances under s 473DD(a) – whether Authority erred by failing to consider new information – whether Authority failed to exercise its discretion in s 473DC to seek new information –whether Authority failed to engage in an active intellectual consideration of applicant’s claims – whether Authority decision was unreasonable in relation to its fact-finding – no jurisdictional error – application dismissed

Legislation: Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 46A, 473CA, 473CB, 473DC, 473DD, 476, 477

Cases cited:
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37

BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Border Protection v Omar (2019) 272 FCR 589; [2019] FCAFC 188

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17

MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

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

Division: Division 2 General Federal Law

Number of paragraphs: 113

Date of hearing: 27 January 2022

Place: Perth

Counsel for the Applicant: Mr A Krohn

Solicitor for the Applicant: Mano Associates

Counsel for the First Respondent: Mr J Barrington

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore Lawyers
ORDERS

MLG 920 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BYT17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

20 JUNE 2022

THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.

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 LADHAMS:
INTRODUCTION

Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 10 April 2017. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The originating application to this Court was filed on 5 May 2017. The applicant now relies on an amended application filed on 30 December 2021. The amended application raises three grounds which variously allege jurisdictional error in the Authority’s approach to ss 473DD and 473DC of the Migration Act, failure to take into account all relevant considerations, unreasonableness in fact-finding by the Authority and misapplication or misunderstanding of the ‘real chance’ and ‘real risk’ tests.
For the reasons explained below, I have found that there is no jurisdictional error in the Authority decision. While I have accepted that the Authority erred in its approach to s 473DD of the Migration Act, I have found that the error made by the Authority was not material. Given that the applicant has not established jurisdictional error, the application to this Court is dismissed.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia by sea at Cocos (Keeling) Islands in September 2012 without a visa, and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 14 November 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The invitation advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 19 January 2016 the applicant lodged a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. He claimed to fear harm from the Sri Lankan authorities on the basis of his Tamil ethnicity and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) because of his work in mine clearance.
On 28 October 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
A delegate of the Minister made a decision on 24 February 2017 not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 23 March 2017 the applicant’s solicitor provided written submissions to the Authority.
On 10 April 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had regard to the material provided by the Minister under s 473CB of the Migration Act, and those parts of the submission provided by the applicant that addressed the delegate’s decision and findings and did not amount to new information. The Authority did not consider those parts of the submission that it considered to be new information, as it was not satisfied that the requirements of s 473DD were met.
The Authority accepted that the applicant is a Tamil male and Sri Lanka would be the receiving country. The Authority accepted that the applicant provided a low level of support to the LTTE by lending his motorbike to members but was not satisfied that this in itself would indicate a real chance that the applicant would face harm on return to Sri Lanka.
The Authority accepted that the applicant worked as a mine clearer and took into account the applicant’s claim that members of the same company for which the applicant worked had gone missing. The Authority considered it plausible that the army was interested in the mine clearance operations and regularly questioned the applicant, possibly as frequently as daily as the civil war escalated, and that on some occasions he was physically assaulted. However, the Authority did not accept that the army suspected the applicant of supplying munitions to the LTTE. The Authority did not consider it plausible that the army would question the applicant daily for six months, but not conduct a search of his property in the period from 2006 to 2008, if he was suspected of supplying items to the LTTE.
The Authority did not accept the applicant’s claims that the army visited his home in 2008 in search of him or to kill him and that he left his home area in fear for his safety. The Authority also did not accept that the applicant left the mine clearing company that he worked for in 2008 because of fear for his safety, in circumstances where de-mining activities were hampered at times of escalated conflict and the applicant resumed working for the same company 14 months after he left.
The Authority was not convinced that the applicant had no further contact with his family after he left Jaffna in 2008 until he arrived in Australia in 2012, finding these claims to be implausible. The Authority accepted that the applicant’s family went to India in 2008, but did not accept that this was in order to avoid harassment based on the applicant’s mine clearance work.
The Authority was not satisfied that the applicant was of interest to the authorities after he resumed his employment in mine clearing work from July 2009. The Authority did not accept that in November 2012 or 2013 the authorities visited it his home in Jaffna, nor did it accept the claim in the protection visa application that in November 2013 the authorities dug up his land looking for hidden weapons and took his work boots as these could be used implicate him as being linked to the LTTE. The Authority did not find it plausible that if the authorities were suspicious of the applicant hiding weapons from his time clearing mines in 2006 to 2008, they would leave it some five years before making a search of his property.
The Authority did not accept that someone came to the applicant’s aunt’s home in 2012 looking for him, and that he immediately resigned from his employment in fear for his safety and then departed to Australia to avoid harm from the authorities. The applicant had claimed that he left Sri Lanka five days after he resigned from his employment, but a certificate of employment showed that he had resigned some six weeks before he left Sri Lanka.
The Authority accepted that as a Tamil the applicant had a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lankan authorities. However, having regard to country information and the improved security situation since the applicant left Sri Lanka, the Authority was not satisfied that the fear was well-founded.
The Authority found that the level of societal discrimination the applicant would face on return to Sri Lanka on the basis of his Tamil ethnicity would not amount to serious harm or systemic and discriminatory conduct and the applicant did not have a well-founded fear of serious harm on this basis.
The Authority accepted that on return to Sri Lanka, the applicant would be considered by the authorities to be a failed asylum seeker, who departed Sri Lanka illegally, and that as a consequence he may be questioned by police at the airport and may be remanded into police custody for a brief period of time. However, the Authority did not consider that this would amount to serious harm.
The Authority did not accept that the applicant’s employment as a mine clearer with an international non-government organisation (NGO) would result in him being perceived as being an LTTE supporter and therefore it was not satisfied that he would face harm on this basis.
Having considered the applicant’s claims individually and cumulatively, the Authority was not satisfied that there was a real chance that the applicant would experience harm in the reasonably foreseeable future in Sri Lanka. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm. This complementary protection finding was based on similar factual findings to those made for the purpose of the refugee assessment, as well as its assessment that any mistreatment that the applicant would face upon his short detention on return to Sri Lanka would not be conduct that amounts to significant harm.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By amended application filed on 31 December 2021, the applicant advances the following three grounds:
1.The Second Respondent (“the Authority”) fell into jurisdictional error in interpreting or applying the law.
Particulars
(a) The Authority failed to consider and to determine pursuant to section 473DD(b) of the Migration Act 1958 (“the Act”) whether what it regarded as “new information” regarding contact of the Applicant with his wife (CB 185-186, Decision [5]-[6]):
“(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”,
but the Authority was obliged to consider and to determine these questions under section 473DD(b) of the Act before determining whether there were exceptional circumstances under section 473DD(a) to consider the information.
(b) Further or in the alternative to Particular (a) to this Ground, the Authority failed to consider what it regarded as “new information” regarding contact of the Applicant with his wife (CB 185-186, Decision [5]-[6])
(c) The Authority did not seek new information under section 473DC of the Act about matters where it noted it did not have information, namely possible alternate means the Applicant may have had to contact his wife before he arrived in Australia, or why he did not feel constrained from contacting her after he did so. (CB 189-190, [17])
(d) The Authority erred in interpreting or applying the term “real chance” in section 5J(1)(b) of the Act or “real risk” in section 36(2)(aa) of the Act, shown by its conclusion that the Applicant did not have a real chance or real risk of suffering persecution or significant harm so as to meet the requirements of sections 36(2)(a) or 36(2)(aa) of the Act. The Applicant refers to the particulars to Ground 3.
2.The Authority fell into jurisdictional error in failing to consider relevant considerations.
Particulars
(a) Further or in the alternative to Particular (a) to Ground 1, the Authority failed to consider whether “new information” met the requirements of section 473DD(b)(i) or (ii) of the Act before considering whether there were exceptional circumstances to consider it pursuant to section 473DD(a).
(b) Further or in the alternative to Particulars (a) to Ground 1 and to Ground 2, the Authority failed to consider what it regarded as “new information” regarding contact of the Applicant with his wife (CB 185-186, Decision [5]-[6]).
(c) The Authority failed to consider with an actual intellectual engagement the question whether the Applicant may be at risk of persecution or significant harm as a consequence of his work removing landmines, given its findings that he had suffered assaults and that there were reports of the abduction, murder and disappearance of persons working for international mine clearing agencies. (CB [13]-(14]),
(d) The Authority found that the Applicant “on some occasions was physically assaulted” (CB 188, [14]), but did not make a finding whether this was each time he was questioned, twice a week, and whether it involved torture causing injury as the applicant had claimed. (CB 9, 23, 84)
(e) The Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. This question was squarely raised by the Applicant's evidence, his submissions, and the findings of the Second Respondent. (See e.g. CB 42-44, 90-105, 122-137, 197-204, and CB 249, [19])
3. The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
(a) The Authority was unreasonable in not finding that there were exceptional circumstances within the meaning of section 473DD of the Act to consider the “new information” regarding contact of the Applicant with his wife (CB 185-186, Decision [5]-[6])
(b) The Authority was unreasonable in rejecting the claim of the Applicant that he was suspected of involvement with the LTTE and the Sri Lankan authorities, and that he left his employment in May 2008 because of fear for his safety. This was unreasonable, given the reports of harm to people working in removing mines, and given that the Authority accepted that the Applicant had been questioned and assaulted, and because it assumed that the Sri Lankan authorities always acted in a careful, orderly, efficient and synchronized way. (CB 188, [14]-[16]; 192, [25]).
(c) The Authority was unreasonable to accept that the Applicant's family left for India in 2008, but not to accept that this was to avoid harassment for his mine clearing work. (CB 190, [18]).
(d) The Authority had no logically probative basis to reject the Applicant's claim that the Sri Lankan authorities came to his home in Jaffna in 2012 or that they dug up his land looking for weapons in 2013, as they may have received additional information or developed suspicions at any time. (CB 190, [19])
(e) It was not reasonably open to the Authority to reject his claim that the Authorities came to his aunt's house because of the inconsistency, between the date on the certificate of his employment (CB 82) and in his evidence, about how long after this event he left Sri Lanka. (CB 190-191, [20]-[23])
(f) It was not reasonable for the authority not to find that the Applicant was at risk of persecution or significant harm in detention or in prison on his return, given the material before it relating to abuse of human rights and torture. (CB 122-137; 192-193 [28]-[30])
CONSIDERATION
There is considerable overlap between the various grounds and particulars in the application. It is therefore convenient to consider the application thematically.
Authority’s application of s 473DD: Ground 1, particulars (a) and (b), ground 2, particulars (a) and (b)
Section 473DD provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The High Court considered the proper approach to applying s 473DD in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17) and said at [11]-[12]:
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12.The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

The applicant provided a submission to the Authority which commented on the delegate’s decision and said in part:
The primary decision maker contended that it seemed unusual that the applicant did not contact his wife as he was concerned that his call would be traced however remained in contact with his employer. The Applicant instructs that his wife fled to India and calls between Sri Lanka and India were monitored as the Sri Lankan Authorities were suspicious of Tamils who were relying on their association with LTTE affiliates in India. As such, given this monitoring, the applicant was not in contact with his wife while she was in India. As his former employer was in Sri Lanka, he did not have the same level of concern that the call was being monitored. The Applicant instructs that he was aware his wife was harassed as he was in contact with her prior to her fleeing to India. It was due to the harassment she faced from the Authorities that she had to flee to India.…
In the present case, the Authority identified at [5] of its reasons that information in the submission from the applicant’s lawyer that ‘calls between Sri Lanka and India were monitored as the Sri Lankan Authorities were suspicious of Tamils who were relying on their association with LTTE affiliates in India’ and the applicant ‘was aware his wife was harassed as he was in contact with her prior to her fleeing to India’ was new information that was not before the delegate.
The Authority considered whether this new information met the criteria in s 473DD of the Migration Act at [6] of its reasons, where it said:
The IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. The delegate asked the applicant detailed questions about this matter at the SHEV interview and the applicant consistently stated that he had no contact with his wife from the time he left Jaffna in 2008; he did not state that he spoke to her between then and when she left for India later in 2008. In response to questions about when he became aware of the harassment his wife experienced he stated that this was not until they re-established contact after his arrival in Australia. When asked why he was concerned about being in contact with his wife from 2008 he did not advance the claim about monitoring of telephone calls between India and Sri Lanka. The post-interview submission addressed the concerns the delegate raised at the interview, yet it did not provide this information. I have noted the representative’s comments in the submission that the applicant may find the immigration process and formal interviews difficult and he may be reluctant to speak openly to Australian authorities. However I am not satisfied that there is any sensitivity in this information that would support a contention that he had difficulty providing this information to the delegate. I am not satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
Particular (a) of grounds 1 and 2
By ground 1, particular (a) and ground 2, particular (a), the applicant asserts that the Authority erred in its application of s 473DD because it failed to consider the criteria in ss 473DD(b)(i) and 473DD(b)(ii) before considering whether there were exceptional circumstances to justify considering the new information for the purposes of s 473DD(a).
The applicant submitted that the Authority did not ‘formally and explicitly’ address either limb of s 473DD(b) of the Migration Act before determining whether there were exceptional circumstances for the purposes of s 473DD(a).
It is not necessary for the Authority to ‘formally and explicitly’ address both limbs of s 473DD(b). Rather, the Authority is to consider the substance of those criteria. This can be seen from the following passage of APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, which was cited in the Minister’s submissions, where the Federal Court said at [79] (emphasis added):
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
I then turn to whether, on a fair reading of the Authority’s reasons at [6], the Authority considered the substance of ss 473DD(b)(i) and (ii) prior to considering whether there were exceptional circumstances for the purposes of s 473DD(a).
The applicant submitted that, although the Authority said that it was not satisfied that there was any sensitivity in the information that would support a contention that the applicant had difficulty providing the information to the delegate, this statement was not a finding explicitly on the question framed by s 473DD(b)(i). The applicant further submitted that the Authority gave no consideration at all to the necessary question under s 473DD(b)(ii).
On the other hand, the Minister submitted that the Authority’s statement that it was not satisfied there was any sensitivity in the information that would support a contention that the applicant had difficulty providing the information to the delegate was clearly a finding directed to the criterion in s 473DD(b)(i) and the Court should infer that the Authority engaged in the consideration of that criterion. The Minister also submitted that the Authority considered the information against the criterion in s 473DD(b)(ii) and did not consider that the information was credible, in the sense that it was not capable of being accepted. This was said to be based on the Authority’s comments that:
(a)the applicant had been asked detailed questions about the timing of his contact with his wife, and had consistently stated that he had had no contact with his wife from the time he left Jaffna in 2008;
(b)the applicant had stated he was not aware of the harassment his wife experienced until they re-established contact after his arrival in Australia; and
(c)the applicant had an opportunity after the hearing with the delegate to provide further information but failed to provide this information.
I am satisfied that the Authority clearly considered s 473DD(b)(i) of the Migration Act. It is implicit in the following findings or comments of the Authority that it considered that the applicant had the opportunity to provide the information to the delegate prior to the delegate’s decision:
(a)the delegate asked the applicant detailed questions at the SHEV interview and the applicant consistently stated that he had no contact with his wife from the time he left Jaffna in 2008 and did not indicate that he had spoken to her between then and when she left for India later in 2008;
(b)the applicant was asked questions about when he became aware of the harassment of his wife and stated it was not until they re-established contact after his arrival in Australia;
(c)when asked why he was concerned about being in contact with his wife from 2008 he did not say anything about the monitoring of telephone calls between India and Sri Lanka;
(d)the applicant did not refer to this information in the post-interview submission addressing the concerns raised by the delegate at the interview; and
(e)there was not any sensitivity in the information that would support a contention that the applicant had difficulty providing the information to the delegate.
The matters referred to in paragraphs (a) to (d) in the paragraph above are relevant to the Authority’s consideration of s 473DD(b)(i) because they identify clear opportunities that the applicant had to provide the information to the delegate. When read in conjunction with the finding summarised at (e), they support a conclusion that the Authority considered s 473DD(b)(i). In any event, I am satisfied that the matter referred to in (e) on its own supports a conclusion that the Authority considered s 473DD(b)(i) before considering s 473DD(a) of the Migration Act.
It is more difficult to ascertain any consideration by the Authority of s 473DD(b)(ii). The matters referred to by the Minister, summarised at [37] above, could conceivably be relevant to an assessment of whether the information was credible if it were to be assumed that the Authority considered that a prior inconsistent statement or a failure to raise a matter at an earlier time could mean that the information was not capable of being believed. However, in the particular circumstances of this case, I am not satisfied that the matters identified by the Minister show that the Authority considered the matters in s 473DD(b)(ii) before considering whether exceptional circumstances existed for the purposes of s 473DD(a).
In relation to the new information that the applicant was aware his wife was harassed as he had contact with her before she fled to India in 2008, the Authority identified prior inconsistent statements but has not said anything that would amount to an express or implied conclusion that the new information was not capable of being believed. The failure to say anything that would amount to an express or implied conclusion that the information is not capable of being believed is significant in the present case because the Authority subsequently rejected the earlier evidence that the applicant had given. The Authority found at [17] that it was not convinced that the applicant had no further contact with his family after he left Jaffna in 2008 until his arrival in Australia in 2012. Given this finding later in its reasons, it is difficult to infer that the Authority considered s 473DD(b)(ii) and was not satisfied that the applicant’s new information that he contacted his wife in 2008 before she fled to India was capable of being believed. The more plausible inference is that the Authority did not consider whether the information was credible personal information for the purposes of s 473DD(b)(ii).
In relation to the new information that calls between Sri Lanka and India were being monitored as the Sri Lankan authorities were suspicious of Tamils who were relying on their association with the LTTE affiliates in India, the only comments of the Authority that could potentially be seen as relevant to the consideration of s 473DD(b)(ii) are the comments that the applicant was asked about being in contact with his wife from 2008 and did not advance the claim about the monitoring of telephone calls, and did not provide the information in the post-interview submission. Without more, I am not prepared to infer that the Authority has made an implied finding that new information is not capable of being believed simply because it noted that the information was not raised earlier, and without making any observations about the significance of failing to provide the information earlier.
It follows that I find that the Authority failed to consider whether the new information provided by the applicant met the requirements of s 473DD of the Migration Act in a manner that is consistent with the High Court’s decision in AUS17 because the Authority did not consider the matters raised by s 473DD(b)(ii) before considering s 473DD(a) and did not take into account the matters raised by s 473DD(b)(ii) in its consideration of s 473DD(a).
I then turn to whether this error is material. An error by the Authority will only amount to jurisdictional error if it could realistically have deprived the applicant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [3], [45]. In assessing materiality in this matter, I am mindful of the following comments of the High Court in SZMTA at [48], which although arising in a slightly different context, seem to be apposite here:
… The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.
The Minister relies on [17] of the Authority’s reasons to support a submission that any error in relation to the application of s 473DD is not material. The Authority said at [17]:
Furthermore I am not convinced that he had no further contact with his family after he left Jaffna in 2008 until his arrival in Australia in 2102 as he was concerned that the army would be able to locate his family and harm them. The applicant’s family continued to live in the family home in Jaffna until they left for India, the same property which he stated the army visited just prior to his resignation from his job, rendering this precaution nugatory. I accept there may have been some concern that by contacting his family by using his own telephone he may have risked his own safety, as advanced in the submission to the IAA, but there is no apparent reason in the information before me why he could not make contact via an alternative means such as his aunt. I note his statement that he accepted the position in 2009 in part to support his family, yet he claims to have avoided all contact with them until his arrival in Australia. I note that when he arrived in Australia he was already aware that his son was present in Australia, indicating that he had contact with someone who was able to provide him this information. I find his account in this regard to be implausible and I do not accept his claim that he had no contact with his family after he left Jaffna in 2008. I consider he has made this claim in an attempt to enhance his protection claims, and specifically his claim to have been targeted by the authorities. I also note that he has resumed contact with his wife since his arrival in Australia. When asked at his SHEV interview if he had any concerns that this contact may result in her being harassed by the authorities, his response was that she stayed with her father; there is no information before me to explain why, on the basis his wife is staying with her father, that the applicant no longer feels constrained in contacting his family, nor how this would mitigate against the claimed attention from the authorities.
In written submissions, the Minister submitted that given the Authority’s rejection of the applicant’s claim that he had no further contact with his family after he left Jaffna in 2008 and acceptance that there may have been some concern that by contacting his family using his telephone he may have risked his own safety, it was not realistic to conclude that had the Authority considered the new information, there was a realistic possibility of a different outcome on the application.
Mr Krohn in his oral submissions for the applicant submitted that the error was material for two reasons:
(a)had the Authority accepted the new information, it would have been a positive finding in relation to the applicant’s credibility on an important point; and
(b)had the Authority accepted that the applicant feared the monitoring of telephone calls by the authorities it might have gone so far as to have found that monitoring occurred in practice.
The applicant bears the onus of establishing that the error by the Authority is material: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [60]. It is therefore convenient to assess materiality by focusing on the applicant’s submissions.
It is difficult to conceive how any assessment of the applicant’s credibility overall might have been affected had the Authority not erred in its approach to s 473DD, or even if it had found that the requirements of s 473DD were met in relation to the new information, considered the new information and accepted it as fact. Relevantly, the applicant claimed to fear harm from the Sri Lankan authorities because he was imputed with a pro-LTTE political opinion and suspected of providing to the LTTE munitions to which he had access through his de-mining work. The applicant initially claimed that because he feared harm for himself and his family, he did not contact his family after he left Jaffna until he arrived in Australia. The Authority did not believe that the applicant was suspected of providing munitions to the LTTE, and did not believe that he avoided contacting his family for fear that the army would locate them, noting that they continued to reside in the same house that the applicant claimed the army previously visited.
The new information related to the applicant’s contact with his family. The information that the applicant had contact with his wife in 2008 prior to her departure for India was inconsistent with information and evidence that the applicant had provided to the Department previously. It is not realistic to conclude in this matter that the applicant making one new statement in the face of his several earlier inconsistent statements, even if the Authority accepted the later statement, could impact the Authority’s overall assessment of the applicant’s credibility in a way that could realistically have deprived the applicant of the possibility of a successful outcome.
Further, the new information about the applicant’s contact with his wife in 2008 could only reinforce the Authority’s rejection of the applicant’s evidence that he avoided contacting his family for fear that the army would harm them. It could not feasibly increase the likelihood of the Authority accepting that the applicant was of interest to the authorities due a suspicion that he was supplying munitions to the LTTE or any imputed LTTE views.
I do not accept that there could realistically have been the possibility of a different outcome if the Authority had accepted the information that the telephone calls between Sri Lanka and India were being monitored. This information was provided to the Authority to explain why the applicant was afraid to contact his family when they were in India. It was a reason given for an earlier assertion. However, the Authority had already accepted the earlier assertion even without the reason provided by the applicant when it accepted that the applicant may have been concerned that by contacting his family using his own telephone he may have risked his own safety. Further, nothing turns on the applicant’s submission that the Authority might have found that the monitoring of telephone calls did in fact happen, as there was no claim based on the fact of the monitoring of telephone calls as distinct from the applicant’s fear of it.
It follows that the applicant has not established that the Authority’s error was material and therefore it is not a jurisdictional error.
Particular (b) of grounds 1 and 2
By particular (b) of grounds 1 and 2, the applicant submits that the Authority erred by not considering the new information. The applicant made the following written submissions in support of this part of his application:
36.As the Authority erred, as set out above, in interpreting or applying section 473DD, it erred in not considering the new information regarding contact of the Applicant with his wife… It ought to have found that the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”, and therefore met the requirements of section 473DD(b)(ii). It should then have found that there were exceptional circumstances under section 473DD(a) to consider it. It was not lawful for the Authority to close its mind to considering the information, as this may have affected the decision on whether there was a small, but real, chance the Applicant faced harm such that he was owed protection under section 36(2)(a) or 36(2)(aa).
…
43.Further or in the alternative to Particulars (a) to Ground 1 and to Ground 2, and precisely because the Authority erred in determining whether new information met the requirements of section 473DD(a) before determining whether it met the requirements of section 473DD(b), the Authority erred further in that failed to consider “new information” regarding contact of the Applicant with his wife… As submitted above, it was unreasonable and unlawful of the Authority not to consider this information.

I accept that had the Authority properly turned its mind to s 473DD(b)(ii), it may have found that that criteria was met and, had it taken into account these matters in assessing s 473DD(a), there is a realistic possibility that the Authority may also have found that s 473DD(a) was met. However, this would not have been the only conclusion open to the Authority.
I have found above that although the Authority erred in its approach to s 473DD, that error was not material. It follows from that finding that particular (b) of grounds 1 and 2 does not establish jurisdictional error. However, even if I had found that the Authority’s error in its approach to s 473DD was a jurisdictional error, I would not accept the error alleged in particular (b). The appropriate course if I had found that there was a jurisdictional error in relation to the Authority’s application of s 473DD would be to quash the Authority decision and remit the matter to the Authority for reconsideration. It would then be for the Authority to reconsider the application of s 473DD. It is not for the Court to substitute its own finding as to whether the criteria in s 473DD were met.
The Authority was precluded from lawfully taking the new information into account unless it was satisfied that the criteria in ss 473DD(a) and 473DD(b) were met. A ground based on a failure to take into account a relevant consideration can only be established if the consideration was one that the Authority was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (per Mason J) at [15]. In the absence of a finding that the new information met the criteria in s 473DD, the Authority was not bound to consider the new information in the substantive review. Indeed, it was prohibited from considering the new information.
There is no jurisdictional error established by grounds 1 and 2, particulars (a) and (b).
Failure to seek additional information from applicant: Ground 1, particular (c)
In the written application, the applicant asserts that the Authority misapplied or misinterpreted the relevant law by failing to exercise its discretion in s 473DC of the Migration Act to seek new information from the applicant about possible alternative means the applicant may have had to contact his wife before he arrived in Australia, or why he did not feel constrained from contacting her after he arrived in Australia.
In his written submissions, the applicant submitted that there was an ‘informational gap’ about these matters which was important to the Authority’s reasoning at [17] of its reasons (extracted earlier in this judgment at [45]). In oral submissions, Mr Krohn acknowledged that there was not an informational gap of the type described in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17), but submitted that there was nevertheless a different type of informational gap because the Authority had indicated that it was concerned that there was something that it did not have information about. Mr Krohn submitted that it was unreasonable for the Authority not to exercise its discretion in s 473DC to obtain new information from the applicant.
Mr Barrington for the Minister submitted that the applicant’s submission seeks to impose some sort of procedural fairness obligation or fact-finding obligation on the Authority which it simply did not have. The Minister relied particularly on DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 (DGZ16), where the Full Court of the Federal Court said at [72]:
We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106] that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
The Minister further submitted that there was no need to seek further information from an applicant simply because credibility was an issue and, in the present case the Authority did not rely upon a different assessment of demeanour to the delegate and was not relevantly disadvantaged from the delegate in terms of the information it had before it.
No jurisdictional error is established by ground 1, particular (c). Ground 1 is pleaded as an assertion of jurisdictional error in interpreting or applying the law. Nothing in the way that the applicant has advanced this ground identifies any misapplication or misinterpretation of s 473DC.
Despite the way the ground is pleaded, I understand the main argument of the applicant to be that the Authority acted unreasonably in failing to exercise its discretion in s 473DC to obtain further information from the applicant. Section 473DC(1) confers on the Authority a discretion to get new information that was not before the Minister and that the Authority considers may be relevant. Section 473DC(2) makes clear that the Authority does not have a duty to get request or accept any new information. Nevertheless, it is well-established that the discretionary power in s 473DC(1) is conferred on the Authority subject to the implied condition that it be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17 at [3].
Nothing in the present case made it unreasonable for the Authority not to seek new information from the applicant. Both the delegate and the Authority made adverse credibility findings in relation to the applicant’s claims to have attracted the interest of the Sri Lankan authorities because of any suspicion that he was providing munitions to the LTTE. The delegate considered the applicant’s evidence regarding the lack of contact he had with his wife after he left Jaffna to be ‘unconvincing’. It is apparent that the delegate raised some concerns with the applicant at the protection visa interview. In a post-interview submission to the delegate, the applicant’s representative said:
We note it was contended that it was implausible the applicant stopped contacting his wife for a prolonged period. The Applicant instructs that he was very worried that his work for the [NGO] would put his wife and child at risk of serious harm. In his mind, he thought if he became estranged from them then it would reduce the chance that they would be targeted. He instructs that he was extremely stressed that his wife and child may be harmed and was not thinking clearly however he believed it was necessary to try and save them from harm. We submit that it is plausible the applicant was fearful his family would face harm and therefore acted in a manner he believed would assist ensure they were protected.
It is clear from this that the applicant was on notice prior to the delegate’s decision that there were issues in relation to the credibility of his evidence that he did not contact his wife for an extended period. The applicant was afforded an opportunity to comment on those issues at the interview, after the interview, and in his submission to the Authority, which the Authority considered to the extent that it did not contain new information. No new issues arose in the review by the Authority.
The applicant suggested that the Authority should have specifically invited him to comment on:
(a)whether he could have contacted his family other than by using his own telephone, such as through his aunt; and
(b)why the applicant did not feel constrained from contacting his wife after he arrived in Australia.
In relation to (b), it is apparent from [17] of the Authority’s reasons, extracted above, that the delegate put this question to the applicant. The applicant responded that his wife was staying with her father, and the Authority expressed its concern about this response noting that the applicant had not explained why the fact that his wife is staying with her father means that he no longer feels constrained from contacting her. This, and the matter referred to in (a), form part of the reasoning process of the Authority as to why the Authority did not accept the applicant’s evidence. As the Minister submitted, the Authority was under no obligation to disclose to the applicant any specific reservations about his case and to give him an opportunity to comment: DGZ16 at [72].
The Authority did not act unreasonably in failing to exercise its discretion in s 473DC to obtain new information from the applicant, nor is any other jurisdictional error established by ground 1, particular (c).
Failure to consider relevant considerations: Ground 2, particulars (c)-(e)
The applicant by ground 2 asserts that the Authority failed to engage in an active intellectual consideration of aspects of his claims.
It is well-established that the Authority is required to consider the claims advanced by the applicant and their component integers: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. It is also well-established that the consideration of the applicant’s claims must be an active intellectual assessment of the claims: Minister for Immigration and Border Protection v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [36]-[37].
The applicant has identified three claims, or integers of claims, that he says the Authority failed to consider or make findings on.
Particular (c)
Particular (c) asserts that the Authority failed to actively, intellectually consider whether the applicant may be at risk of persecution or significant harm as a consequence of his work removing landmines, given its findings that he had suffered assaults and that there were reports of the abduction, murder and disappearance of persons working for international mine clearing agencies.
The applicant submitted that the Authority’s finding that the applicant had suffered assaults must be taken to be a finding that the applicant suffered the assaults he claimed, that is, the applicant was assaulted every time he was questioned by the Sri Lankan authorities.
The applicant referred to the Authority’s conclusion that the repeated questioning of the applicant by Sri Lankan authorities on the same points was implausible. The applicant submitted that this conclusion did not deal with the real possibility that the Sri Lankan authorities operated in a way different to the Authority’s expectations, or that as the applicant cleared more mines, he had more opportunities to take or give information regarding weapons. The applicant submitted that the degree of intellectual engagement with the applicant’s claim was insufficient.
The Minister submitted that contrary to the applicant’s submissions, the Authority found that the applicant was assaulted ‘on some occasions’ when he was questioned, not on all occasions.
The Minister further submitted that the Authority was not required to grapple with the real possibility that the Sri Lankan forces operated in a way that differed from the expectations of the Authority. There was no need in the present case for the Authority to consider the ‘what if I’m wrong?’ test discussed in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123 at [94]-[95], because, read fairly, there was nothing in the Authority’s reasons to suggest it entertained any real doubt in its findings in relation to how the Sri Lankan authorities would act. The Authority dismissed the prospect that the army would question the applicant daily for a period of six months without conducting a search of his property because it did not consider that this was plausible. The Minister submitted that the language of implausibility demonstrated that the Authority had no real doubt about its finding. The Minister also submitted that the Authority understood and engaged with the applicant’s claim as it was put and was not required to consider different potentialities in which that the Sri Lankan authorities might act because the applicant made no such claim.
I accept the Minister’s submissions in relation to this particular. The Authority clearly considered whether the applicant would face harm as a result of his de-mining activities. The Authority accepted that it was plausible that the army was interested in mine clearance operations and questioned the applicant about his activities as frequently as daily as the civil war escalated. The Authority also accepted that on some occasions, and not on all occasions as submitted by the applicant, the applicant was physically assaulted. The Authority considered and rejected the applicant’s claims that he was suspected of supplying munitions to the LTTE because of the stringent security arrangements that the applicant described about the work of the de-mining employees and because of the implausibility that the army would simply question him for six months without conducting a search of his property during this period if they suspected he was providing items to the LTTE. These findings were open to the Authority.
Further, the task for the Authority was to assess the likelihood of the applicant facing serious or significant harm in the reasonably foreseeable future. The Authority set out its reasons for finding that the applicant would not face harm in the reasonably foreseeable future as a result of his mine clearance activities at [23]-[25], where it said (footnotes omitted):
23.I have accepted that the applicant was regularly harassed, questioned and mistreated by the authorities when working for the [NGO] in 2006-2008, noting that this was during the civil war and a period of heightened tension. I have not accepted that he was suspected of supplying munitions to the LTTE and I have not accepted that the authorities visited his home in 2008 or in 2012/2013, nor do I accept that they visited his aunt's house in search of him in 2012. It follows that I do not accept that he was being pursued by the authorities when he left Jaffna in 2008 or Sri Lanka in 2012.
24.I have considered whether the applicant's role as a de-miner working for an international NGO would attract adverse attention. The post-interview submission quotes Minority Rights Group International as stating "Sri Lanka's minorities continue to be harassed and intimidated by state security forces for activism or suspected separatism" and "human rights defenders were caught up in the sweeps on suspicions of engagement with former LTTE fighters". I note that mine clearance work was conducted by international NGOs in partnership with the army and I note that humanitarian workers during the conflict and its immediate aftermath, particularly those who worked with or were perceived as working with human rights or protection issues, are a profile group identified by the UNHCR as being at risk of harm. Reporting more recently in 2016, the UK Home Office noted that the Sri Lankan government's concern has changed since the civil war ended and the government's present objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan state. The UK Home Office reported that the Upper Tribunal in 2013 recognised four categories of persons at risk; those with a significant role in post-conflict Tamil separatism, journalists/human rights activists, people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces and those whose name appears on a "stop" list of those against whom there is an extant court order or arrest warrant. I am not satisfied that the applicant falls within one of these categories of persons. The applicant has not been outspoken on Tamil separatist or human rights issues, or critical of the Sri Lankan government. I accept that the applicant's experience with explosives could be of benefit to a resurgent LTTE, but noting that the LTTE no longer exists as a military force and that the applicant has not been involved in any Tamil separatist activities that would be of concern to the authorities, I am not satisfied that his skill with explosives would give rise to a well-founded fear of harm on return to Sri Lanka.
25.I have noted the representative's comments that it is highly plausible de-miners have been targeted due to their imputed political opinion as suspected LTTE affiliates, however I am not satisfied that working in this field would result in an imputed political opinion as an LTTE supporter, notwithstanding that during the war some mine clearance agencies worked with the LTTE.
It is clear from this extract that the Authority considered that the circumstances in Sri Lanka had improved since the applicant’s claims to have been assaulted in 2008 and the references to the mining workers being harmed during the civil war. The Authority actively intellectually engaged with the applicant’s claim.
Particular (c) does not establish jurisdictional error.
Particular (d)
Particular (d) refers to the Authority’s finding that the applicant was on some occasions physically assaulted, and asserts that the Authority erred by not making a finding about whether this was each time the applicant was questioned and whether it involved torture causing injury as the applicant had claimed. In his written submissions, the applicant submitted that if, contrary to his submissions in relation to particular (c), the Authority is not taken to have accepted that the applicant was assaulted each time he was questioned, then it failed to make a finding on a material question of fact, namely how often he was assaulted and whether it involved torture causing injury.
The Minister submitted that the Authority found that the applicant was assaulted on some of the occasions he was questioned and the applicant did not identify any authority to suggest why the Authority was required to make a finding of a more specific kind concerning the number of occasions or the precise consequences of previous assaults. The Minister further submitted that ‘nothing in the subject matter, scope and purpose of the Act required the Authority to make specific factual findings’.
I again agree with the Minister’s submissions. The Authority accepted that the applicant had been physically assaulted on some occasions when questioned about his de-mining activities during the civil war. It was not necessary for the Authority to make any more specific finding about how many times the applicant was physically assaulted. The applicant has not identified any parts of his claims in which he provided specific details about the severity of the ‘beatings’, the nature of the ‘torture’ or any injuries he sustained, so it is unclear to me how the Authority could be expected to make more specific findings on those matters.
Particular (d) does not establish jurisdictional error.
Particular (e)
By particular (e), the applicant asserts that the Authority failed to intellectually engage with the question of whether the applicant faced a real chance of suffering persecution or significant harm while in detention or under the control of the Sri Lankan authorities on his return to Sri Lanka. The applicant submitted that this was squarely raised. He further submitted it was an important question for the Authority to consider because:
(a)the Authority had accepted that the applicant suffered repeated questioning and assaults;
(b)there were explicit submissions supported by independent sources of country information relating to abuses of human rights specifically addressing risks to people in custody, the Authority accepted the reports but did not consider the applicant’s fear to be well-founded, and the Department of Foreign Affairs and Trade’s (DFAT) assessment that there was a low risk of harm for returnees applied only to the period that a returnee may be held at the airport and not to subsequent detention in prison; and
(c)it was unreasonable, artificial and unlawful for the Authority not to consider the applicant’s claims of not telephoning his wife due to fears of government monitoring.

The Minister submitted that the Authority gave detailed consideration to the risks that the applicant may face upon return to Sri Lanka, taking into account relevant country information. The Minister submitted that the Authority’s finding that the applicant was not a person of interest to the Sri Lankan authorities meant that is was not required to go on to consider whether the applicant faced a real risk of further harm in detention as a consequence of his claimed profile, which it had rejected. The Minister also submitted that:
(a)the weight given to country information was a matter for the Authority to decide;
(b)the Authority was not required to, nor permitted to, consider the new information put to it by the applicant; and
(c)this ground is an impermissible attempt at merits review by the applicant.
I again accept the Minister’s submissions rather than the applicant’s. The Authority gave careful consideration to the likely questioning and possible brief period in detention that the applicant would face as a consequence of breaching the Immigrants and Emigrants Act. The Authority did not consider that a brief period of detention, even having regard to the poor prison conditions, would constitute the necessary level of threat to the applicant’s life or liberty or comprise significant physical harassment or ill treatment under s 5J(5) to amount to serious harm. The Authority also found that the treatment the applicant could face as a result of breaching the Immigrants and Emigrants Act would not amount to significant harm. It was open to the Authority to rely on DFAT’s assessment that the risk of harm to returnees was low and that, given the applicant’s lack of a relevant profile, the applicant was unlikely to face harm.
Ground 2 does not establish jurisdictional error.
Unreasonableness in fact-finding and misapplication of ‘real chance’ and ‘real risk’ tests: Ground 3 and ground 1, particular (d)
By ground 3, the applicant alleges that that the Authority decision was unreasonable in relation to its fact-finding. Six findings are referred to in the particulars.
By ground 1, particular (d), the applicant asserts, relying on the same particulars as those advanced in ground 3, that the Authority’s conclusion that he did not meet the requirements of ss 36(2)(a) or 36(2)(aa) of the Migration Act shows that it misunderstood or misapplied the terms ‘real chance’ and ‘real risk’ in ss 5J(1)(b) and 36(2)(aa) of the Migration Act, respectively.
The principles relating to reasonableness in fact-finding were summarised by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24 at [30], where McKerracher, Colvin and Jackson JJ said:
The following principles, as stated in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43] (Derrington, Banks-Smith and Colvin JJ) when considering whether there had been jurisdictional error by the Administrative Appeals Tribunal by reason of a breach of the implied standard of reasonableness in making factual findings, apply equally to the review of a decision by the Authority:
(1)the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];
(2)where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]‑[47];
(3)unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]‑[5];
(4)it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimants evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];
(5)generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;
(6)the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];
(7) ...
(8)mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];
(9)a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];
(10)a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and
(11)there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain at [25], [30]‑[31].
It is with these principles in mind that I consider each of the particulars.
Particular (a)
Particular (a) relates to the new information considered above. The applicant asserts that the Authority unreasonably concluded that the requirements of s 473DD(a) were not met. I have found above that the Authority misapplied s 473DD by failing to consider s 473DD(b)(ii) before it considered s 473DD(a) and take the matters in s 473DD(b)(ii) into account in determining whether exceptional circumstances existed for the purposes of s 473DD(a). However, I found that that error was not material and therefore did not amount to a jurisdictional error. It follows that I do not find unreasonableness amounting to jurisdictional error as a conclusion following the identification of some recognised species of jurisdictional error: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [27], [72]; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [60].
In any event, by this ground, the applicant seems to have gone a step further and submitted that the new information was ‘so seriously explanatory and supportive of the claim to fear serious or significant harm that the Authority, acting reasonably, was obliged to find “exceptional circumstances” to consider the information’. To the extent that this is a suggestion that only one possible conclusion was open on the evidence before the Authority in relation to s 473DD(a), I disagree. Properly applying s 473DD, reasonable minds may have reached different conclusions about whether there existed exceptional circumstances to justify considering the new information.
Particular (b)
By particular (b), the applicant asserts that the Authority unreasonably rejected his claim that he was suspected of involvement with the LTTE and that he left his employment in May 2008 because of fear for his safety. This was said to be unreasonable:
(a)given the reports of harm to people working in removing mines;
(b)given that the Authority accepted that the applicant had been questioned and assaulted; and
(c)because it assumed that the Sri Lankan authorities always acted in a careful, orderly, efficient, and synchronised way.
There is no unreasonableness in the Authority’s finding. The Authority gave clear and cogent reasons for finding that the applicant was not supplying munitions to the LTTE and was not suspected by the authorities of involvement with the LTTE. As the Minister submitted, the Authority’s finding that the applicant’s claim was not plausible rested on the logical proposition that, if the Sri Lankan authorities suspected the applicant was providing munitions to the LTTE, it would not question him every day for six months without conducting any search of his property.
Further, the Authority had significant doubts that the applicant left his de-mining position in May 2008 because of fear for his safety. The reasons it gave for this were that it coincided with an escalation in hostilities during the war and country information indicated that de-mining activities were hampered at times of escalated conflict and further because the applicant then accepted another position doing the same type of work for the same company 14 months later. These reasons are plausible and logical. A different decision-maker may have come to a different view but it is a matter regarding which reasonable minds may differ.
Particular (c)
By particular (c), the applicant asserts that the Authority acted unreasonably because it accepted that the applicant’s family left for India in 2008 but did not accept that this was to avoid harassment for his mine clearing work. In his written submissions the applicant submitted that it was an entirely logical and reasonable connection that the applicant’s family left because of his mine clearing work and there was no reason for it to be rejected.
At [18], the Authority said (footnotes omitted):
I note his claim that his family went to India toward the end of 2008 due to harassment from the army on the basis of the applicant's mine clearance work. However I also note that Jaffna was highly militarised at this time and due to the stringent security regime regular cordon and search operations were conducted and the Danish Immigration Service reported high numbers of killings and abductions from 2006 to 2008. I accept that his family departed for India in 2008, however noting this country information and my finding that the applicant was not suspected of having providing munitions to the LTTE, I do not accept that this was for reason of avoiding harassment based on the applicant's mine clearance work.
The Authority has given a logical and plausible explanation, based on country information, for finding that there may be alternative reasons why the applicant’s family left for India. The Authority’s finding is not unreasonable.
Particular (d)
By particular (d), the applicant alleges that the Authority had no logically probative basis to reject his claim that the Sri Lankan authorities came to his home in 2012 or that they dug up his land looking for weapons in 2013, as they may have received additional information or developed suspicions at any time.
This finding is addressed at [19] of the Authority’s reasons, where the Authority said:
I note the assertion that when he re-joined the [NGO] in 2009 the applicant “explained to them that he had concerns for his safety and therefore they made arrangements to limit the chance the Sri Lankan Authorities would not become aware of his work. Accordingly, he submits that he rarely went out and stayed within the confines of the office area.” However, am not satisfied that the applicant was of interest to the authorities after he resumed employment with the [NGO] from July 2009. I note that the war had ceased at this time. Speaking in 2012, then Defense Secretary Rajapaksa, spoke of demining vast areas in post war Sri Lanka as “a very difficult challenge that the Government undertook with the help of many foreign organisations”. The completion of de-mining exercises facilitated the return of displaced persons to their homes and land and the indications are that the authorities worked co-operatively and in partnership with the foreign demining agencies at this time. Accordingly I do not accept that in November 2012 or 2013 the authorities visited his home in Jaffna, nor do I accept the claim in the SHEV application that in November 2013 the authorities dug up his land looking for hidden weapons and took his work boots as these could be used to implicate him as being linked to the LTTE. If the authorities had a suspicion that he was hiding weapons from his time clearing mines in Jaffna in 2006 to 2008 it is not plausible that they would leave it some five years before making a search of his property.
It was reasonable for the Authority to rely on country information regarding the cooperation between the government and NGOs in relation to de-mining activities after the conclusion of the war. There is also nothing unreasonable in the Authority’s rationale that the Sri Lankan authorities would not dig up the applicant’s backyard five years later if they had suspected that he had buried munitions in his backyard. I accept the Minister’s submission that the reasonableness of this conclusion is not undermined by the applicant’s assertion that the authorities may have received additional information or developed suspicions at any time, a claim which was not advanced before the Authority and is purely speculative.
Particular (e)
Particular (e) asserts that it was not reasonably open to the Authority to reject the applicant’s claim that the authorities came to his aunt’s house because of the inconsistency between the date of the certificate of his employment and in his evidence about how long after the event the applicant left Sri Lanka. The applicant submitted that the length of time involved in the inconsistency was not a sufficiently grave matter to be logically probative basis for the Authority’s determination to reject the claim.
The relevant finding of the Authority is set out at [22] of its reasons where it said:
I note the comments in the submission to the IAA that “it is conceivable that the applicant while trying to flee his country immediately after becoming aware the Authorities were after him he was not in a position to check the accuracy of the reference”. However, the certificate is dated 25 October 2012, some three months after the applicant had departed Sri Lanka and had arrived in Australia. Furthermore, this does not account for the fact that in the statement of claims submitted with both his invalid 866 and SHEV applications he stated that the visit to his aunt’s house occurred in April 2012; and noting his claim that he resigned immediately after this visit, this is consistent with the date in the employment certificate. I also note that the invalid 866 application statement was dated 10 September 2013, approximately 19 months after the events, mitigating the concerns raised about the difficulty with precisely recollecting incidents from the distant past. I have noted that a discrepancy of a few days would not necessarily bring an applicant’s account into doubt, but in this case the applicant has claimed that he was so fearful for his safety he resigned his position immediately after the visit to his aunt's house and departed Sri Lanka within five days, yet the certificate shows he resigned six weeks before his departure. I am not satisfied that the applicant’s claim is a genuine account of the events. I do not accept that someone came to his aunt’s home in 2012 looking for the applicant and that he immediately resigned his employment in fear for his safety and that he then departed Sri Lanka to avoid harm from the authorities.
It is clear from this extract that the Authority considered the discrepancy in the timing of how soon after the applicant left his employment he left Sri Lanka to be significant, particularly when taking into account earlier statements made by the applicant. I agree with the Minister’s submission that it was plainly open to the Authority to consider that the inconsistency was of sufficient importance to lead it to reject the claim.
Particular (f)
By particular (f), the applicant asserts that it was not reasonable for the Authority to fail to find that the applicant was at risk of persecution or significant harm in detention or in prison on his return given the material before it in relation to abuse of human rights and torture. The applicant has referred to various extracts of country information which are referred to in a submission made on behalf of the applicant to the delegate and submitted that this material refers to abuses of human rights and torture in detention and prison and was not rejected by the Authority.
The Minister submitted that the ground expresses general disagreement with the Authority’s conclusion and is not a basis for legal unreasonableness. The Minister submitted that the Authority’s reasons paid close attention to the country information and the reasons were detailed and considered.
The findings made by the Authority were reasonably open to it. The Authority referred to the country information set out in the applicant’s submissions, but has also considered other country information, including a DFAT report, and has considered the applicant’s own specific profile and circumstances. As a general principle, the choice of and weight to be given to country information is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. There is nothing unreasonable in the present case about the Authority’s choice of country information or the conclusions that it reached based on that country information, taking into account its findings in relation to the applicant’s personal circumstances.
No jurisdictional error is established by ground 3.
Ground 1, particular (d)
The assertion in ground 1, particular (d) is effectively that the Authority’s conclusion that the applicant did not meet the criteria for a protection visa indicates that it misapplied or misinterpreted the real chance and real risk tests because of the findings that I have just considered above in relation to ground 3. I have found that none of the findings by the Authority were unreasonable. Further, there is nothing evident in the Authority’s reasons that would suggest in any way that it has misunderstood or misinterpreted the real chance or real risk tests. Particular (d) of ground 1 does not establish jurisdictional error.
CONCLUSION
I have found that none of the grounds raised by the applicant establish jurisdictional error. It follows that I dismiss the application to this Court.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 20 June 2022

File number:	MLG 920 of 2017
Judgment of:	JUDGE LADHAMS
Date of judgment:	20 June 2022
Catchwords:	MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority erred in applying s 473DD of the Migration Act 1958 (Cth) by failing to consider the criteria in ss 473DD(b)(i) and (ii) before considering whether there were any exceptional circumstances under s 473DD(a) – whether Authority erred by failing to consider new information – whether Authority failed to exercise its discretion in s 473DC to seek new information –whether Authority failed to engage in an active intellectual consideration of applicant’s claims – whether Authority decision was unreasonable in relation to its fact-finding – no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 46A, 473CA, 473CB, 473DC, 473DD, 476, 477
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24 DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Minister for Immigration and Border Protection v Omar (2019) 272 FCR 589; [2019] FCAFC 188 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division:	Division 2 General Federal Law
Number of paragraphs:	113
Date of hearing:	27 January 2022
Place:	Perth
Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	Mano Associates
Counsel for the First Respondent:	Mr J Barrington
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore Lawyers

MLG 920 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BYT17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	20 JUNE 2022