CAQ17 v Minister for Immigration - [2019] FCCA 1807

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1807

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – whether the Authority failed to consider all relevant circumstances – whether a failure to interview the Second Applicant constituted legal unreasonableness – whether the Authority committed jurisdictional error –grounds not made out – application dismissed with costs.

Legislation:
Migration Act 1958, ss.473BA, 473CB, 473DB, 473DC, 473DD, 474FA, Part 7AA
Federal Circuit Court Rules 2001, r.11.11

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous and Affairs [2003] FCAFC 184
AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111
BVZ16 v The Minister for Immigration and Border Protection [2017] FCA 958
CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192
CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901
DYK v Minister for Immigration and Border Protection [2018] FCAFC 222
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v Stretton (2016) 329 ALR 491
Minister for Immigration & Border Protection vSZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

First Applicant:

CAQ17

Second Applicant:

CAR17

Third Applicant:

CAS17

Fourth Applicant:

CAT17 BY HIS LITIGATION GUARDIAN, THE FIRST APPLICANT

Fifth Applicant:

CAU17 BY HER LITIGATION GUARDIAN, THE FIRST APPLICANT

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

MLG 960 of 2017

Judgment of:

Judge Blake

Hearing date:

21 May 2019

Date of last submission:

21 May 2019

Delivered at:

Melbourne

Delivered on:

28 June 2019

REPRESENTATION

Counsel for the applicants:

Mr White

Solicitors for the applicant:

Lander & Rogers Lawyers

Counsel for the first respondent:	Mr Swan
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Mills Oakley Lawyers

ORDERS

The application filed on 11 May 2017 and amended on 22 January 2019 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 960 of 2017

CAQ17

First Applicant

And

CAR17

Second Applicant

And

CAS17

Third Applicant

And

CAT17

Fourth Applicant, by his litigation guardian, the First Applicant

And

CAU17

Fifth Applicant, by her litigation guardian, the First Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 21 April 2017. In its decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicants a Safe Haven Enterprise (subclass 790) visa (‘the visa’).
For the reasons set out below, I have decided to dismiss the application for review.

Background

There are five applicants, all members of the same family. They are the husband (‘First Applicant’), his wife (‘Second Applicant’) and their three children (respectively the ‘Third Applicant’, the ‘Fourth Applicant’ and the ‘Fifth Applicant’) (collectively, the ‘Applicants’).
The Applicants are Tamil Hindus from the Batticaloa district in the Eastern Province of Sri Lanka. The Applicants left Sri Lanka by boat on 17 October 2012 and arrived on the Cocos Islands on 4 November 2012 as unauthorised maritime arrivals. The Applicants applied for the visa on 29 March 2016.
The First Applicant’s visa application identifies him as the main applicant. Both the First and Second Applicants are noted in the visa application as raising their own claims for protection. The Second Applicant indicated in Form 790C of the visa application that her story was ‘attached’. The Second Applicant did not provide a statement with her visa application. The only statement attached to the visa application is the First Applicant’s claims.
The delegate, on 19 October 2016, invited the First Applicant for an interview scheduled to take place in November 2016. The letter attached a document entitled ‘Important Information About Your Protection Visa Interview’. The First Applicant was encouraged to read the document carefully. Among other things the document contained the following information (Court Book 507):
‘It is important that you present all your claims for protection during your Protection visa interview. If a refusal decision is made on your visa application and your application is reviewed, you may not be able to raise new claims to be considered at that review’.
On 26 October 2016, the delegate sent an email to the Applicants’ legal representative. That email included the following (Court Book 515 – 516):
‘I am interviewing [the husband] on Tuesday, 8 November 2016 and I need to clarify a couple of things with you.
The application lodged on 24 April 2016 indicates that [the wife] is making her own claims, yet I do not have a copy of a statement from her in the application itself and she is not being interviewed. Can I clarify if her claims are actually those of her husband?’.
The Applicant’s legal representative replied to the correspondence above on 2 November 2016 (Court Book 514) and stated, among other things:
‘[The First Applicant’s] wife has made claims based on [the First Applicant’s] statement and the problems that she suffered, given his profile. Therefore, her claims relate to the threats, harassment and treatment she received, based on her husband’s circumstances.’
On 3 November 2016, the delegate responded seeking to clarify whether the Second Applicant was intending to be interviewed. The delegate noted that a booking had not been made for the Second Applicant as she was listed as a dependant on the First Applicant’s visa application. No response was received to this email from the Applicants or their Agent.
The First Applicant was subsequently interviewed by the delegate on 7 February 2017. The First Applicant’s legal representative attended the interview. The Authority at paragraph [16] of its decision, notes, having listened to the recording of the interview, that ‘At no time during the interview or the discussion with the other delegate did the lawyer refer to the second applicant and did not ask that the second applicant be interviewed’.
No correspondence or further submissions were received from either the Applicants’ Agent or the Applicants directly in the weeks following the interview.
On 1 March 2017, the delegate of the Minister refused to grant the Applicants the visa.
The matter then proceeded to the Authority.
On 23 March 2017, the Applicants’ legal representative sent two written submissions to the Authority. One was sent on behalf of the First Applicant (Court Book at 568) and the second written submission was sent on behalf the Second Applicant (Court Book 574). Among other things, the First Applicant’s submission complained that the delegate had erred by not interviewing the Second Applicant who would have corroborated his claims. The Second Applicant’s submission complained, inter-alia, that she was not interviewed by the delegate and was not given an opportunity to present her story.
On 21 April 2017, the Authority affirmed the decision not to grant the Applicants the visa (“the Decision”).
On 11 May 2017, the Applicants filed an Application for review and an affidavit in support in this Court.
Orders were made by consent by His Honour, Judge McNab on 22 November 2017 which provided, among other things, as follows:
a)the matter be listed for a Final Hearing on 19 February 2019 at 3.30pm;
b)the First Applicant be appointed as a litigation guardian for the Fourth and Fifth Applicants;
c)the requirement in rule 11.11 of the Federal Circuit Court Rules 2001 for the filing of an affidavit of consent be dispensed with;
d)the Applicant file and serve 28 days before the Final Hearing, any amended application with proper particulars of the grounds of the application, any affidavits, a supplementary Court Book, if any, and written submissions; and
e)the First Respondent file and serve 14 days before the Final Hearing, written submissions.
The Applicants subsequently filed an amended application, and written submissions on 22 January 2019. The First Respondent filed written submissions on 5 February 2019.

The Application for review

Ground 1

The first ground of review in the application filed on 11 May 2017 and amended on 22 January 2019 (‘Application’) is as follows:
‘In determining not to consider the new information referred to in paragraphs 8, 9 and 10, and paragraph 18 as to a personal claim first made by the Second Applicant, the Second Respondent committed jurisdictional error by failing to consider all relevant circumstances contrary to its obligation pursuant to s.473DD of the Migration Act 1958 (Cth).’
It may be seen that this ground of review directs attention to the obligations contained in section 473DD of the Migration Act 1958 (Act). 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.
It can be seen that there are two conditions that must be satisfied before the Authority can consider new information. The first, set out in subsection (a), is that the Authority must be satisfied that there are ‘exceptional circumstances’. Secondly, the Authority must be satisfied that the new information falls within either of the sub- limbs being (i) or (ii) of subsection (b).
Dealing first with the conditions set out in subsection (a) of section 473DD. The term ‘exceptional circumstances’ is not defined in the Act. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [30], the High Court said the following in relation to what may constitute ‘exceptional circumstances’:
‘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”.’
The ground of review asserts a failure by the Authority to ‘consider all relevant circumstances’ pursuant to the obligation in section 473DD. The Applicant asserts that what section 473DD requires is the Authority to take account of all of the circumstances caught by section 473DD. Put another way, it is said that the Authority must not simply consider in isolation whether ‘exceptional circumstances’ exist in subsection (a), without having regard to the other factors which might arise under subsection (b) of section 473DD.
In support of this proposition, the Applicants took me to the decision in BVZ16 v The Minister for Immigration and Border Protection [2017] FCA 958 where White J said the following at [41]:
‘Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional’ (citations omitted)
The First Respondent accepted the proposition that subsections (a) and (b) of section 473DD of the Act are cumulative and may overlap to some extent. The First Respondent contended, however, that the comments of Justice White in BVZ16 need to be considered in light of a recent decision of the Full Court of the Federal Court of Australia in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111. At paragraphs [13] and [14], the Full Court emphasised that whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case. The Court stated at [14] that:
‘Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather,

s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
I accept that the requirements of subsections (a) and (b) of section 473DD are cumulative and may overlap. I reject, however, the proposition that in each and every case, the Authority must always consider all of the relevant circumstances that may fall to be considered within both of subparagraphs (a) and (b) of section 473DD. Plainly there will be times when it is appropriate to consider the matters set out in subsection (b) in consideration of the question in subsection (a), but that does not require that all matters relevant under subsection (b) be accounted for. It will depend on the circumstances of the case.
I turn now to deal with what is said to be the new information not considered in this case.
The new information said not to be considered is said to be referred to in paragraphs [8] – [10] and paragraph [18] of the Decision. These paragraphs are extracted below:
8. The submission refers to a number of media reports and country information reports that were not before the delegate. At paragraphs 14 and 15, it refers to two media reports that postdate the decision which I am satisfied could not have been provided to the delegate before the decision. Both reports refer to arrests of Tamils who have returned to Sri Lanka. They are general in nature and do not refer to the applicants or to persons in the same circumstances as the applicants. They are consistent with other media reporting that was before the delegate and I am not satisfied that there are exceptional circumstances to justify considering these reports.
9. The remaining media reports and country information reports all pre-date the decision of the delegate. The primary applicant has not explained why these were not provided to the delegate before the decision. While some of these reports refer to studies and reports conducted following the change of government in 2015, I take into account that the information that was before the delegate is more recent than these reports submitted by the primary applicant. I also take into account that the primary applicant was represented by an experienced migration lawyer at the interview and did not provide post-interview submissions. I am not satisfied that there are exceptional circumstances to justify considering this new information.
Second Applicant
10. The second applicant seeks to rely on the information contained in the primary applicant’s submission. I have referred above to what information I have and have not considered. The second applicant also provides three additional media reports. Two are dated December 2012, the third is undated. None of these were before the delegate and the second applicant states that they were not in her possession when the primary applicant was interviewed. The reports are publically available documents but the second applicant has not explained why she did not obtain them until after the interview. I also take into account that the primary applicant’s migration lawyer was present at the interview and did not seek to provide post-interview submissions. I am not satisfied that there are exceptional circumstances to justify considering this new information.
...
18. Having considered all of the evidence before me, I am satisfied that at the time of the decision, the second applicant had not made any personal claims and was relying on the claims of the primary applicant. I am therefore satisfied that the assertion of personal claims now is new information. For the reasons I have set out above, I am satisfied that the second applicant and her lawyer were given many opportunities to raise these claims before the decision was made and did not do so. I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not done so.
It can be seen from the above that the new information the Authority determined it would not consider comprises the following:
a)media reports and country information that postdate the decision of the delegate – paragraph [8] of the Decision;
b)media reports and country information that predate the decision of the delegate – paragraph [9] of the Decision
c)additional media reports, one of which is undated, and the remainder of which apparently predate the decision of the delegate – paragraph [10] of the Decision; and
d)personal claims advanced by the Second Applicant – paragraph [18] of the Decision.
In respect of the above classes of information, the Applicants relied on the failure to consider all of the information above as giving rise to the relevant alleged error. They relevantly accepted though, that it was the new information described at paragraph [18] of the Decision that was the most significant and that information, wrapped up with the other new information not considered, is what gives rise to the error.
In respect of this ground, the Applicant’s submission was effectively as follows:
a)subsections (a) and (b) of section 473DD of the Act are cumulative and overlap as noted above;
b)in making the decision that there were no exceptional circumstances, the Authority made no reference to the totality of the material that was before it;
c)it was relevant that the Second Applicant was now making a personal claim that was unknown to the Minister and that claim had not been determined;
d)by failing to consider all relevant circumstances (the personal claim in conjunction with the other information at paragraphs [8] to [10] of the Decision), the Authority fell into error.
In support of their submissions, the Applicant’s Counsel took me to a number of authorities.
DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 is a decision of Justice Colvin of the Federal Court of Australia. This was an appeal from a decision of this Court. The appeal was allowed. At issue was whether a new claim, in particular that the applicant in DFP16 had trained for six months with the Liberation Tigers of Tamil Eelam (“LTTE”) prior to his arrest, was new information that ought to have been considered by the Authority pursuant to section 473DD of the Act. The Applicants referred me in particular to paragraphs [19] and [20] of that decision which deal, among other things, with the paucity of the Authority’s reasons and its failure to properly consider aspects of claim. The Applicants submitted that the present matter was on all fours with the decision of Justice Colvin. Reliance was also placed on the decision of the Federal Court of Australia in CHF16 v Minister for Immigration & Anor [2017] FCCA 405.

The Applicants also contended that the decision in BVZ16, referred to earlier, was also relevant. In that case, there was a failure by the Authority to consider all the circumstances, including claims not previously raised in relation to the appellant’s detention and torture by the Sri Lankan army. Justice White found that the failure to consider all of the relevant circumstances constituted a constructive failure by the Authority to exercise jurisdiction.
A consideration of the Applicants’ submission as to error must begin with an examination of the obligations on the Authority, among other things, to provide reasons. In this respect, section 473DE of the Act is relevant. Under section 473DE, the Authority is not required to give a comprehensive account of its assessment of the purposes of section 473DD: see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [25]-[30]. Express findings are not required to be made in order for the Authority to reach the conclusion that information is not credible within the meaning of section 473DD(b). Further, as the High Court noted in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25], where there is no obligation on a decision-maker to give reasons ‘it is difficult to draw an inference that the decision has been attended by the error of law from what has not been said by the [decision-maker]’. I regard this background and the observations recorded as important when it comes to assessing the submissions made by the Applicants in this matter.
The error identified by Justice White in BVZ16 was the subject of comment by a Full Court of the Federal Court of Australia in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111. AQU17 concerned an appeal in which the appellant sought to argue that the Authority had limited itself to an unduly narrow interpretation of exceptional circumstances having regard to the facts of that matter. At paragraph [7], the Full Court discussed the judgement of Justice White in BVZ16, including the error that His Honour had identified. After giving some consideration to the ‘exceptional circumstances’, the Full Court said this in relation to the error identified by Justice White at [7]:
‘White J found that the Authority, in that case, had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD because the Authority had confined its consideration as to whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having disclosed the information earlier.’
Having made that observation, the Full Court in AQU17 also discussed the Full Court decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 and at paragraph [8], noted the following:
‘The Full Court held that the Authority, in that case, had made a similar error to that which was identified in BVZ16 because the Authority’s lack of satisfaction that there were exceptional circumstances to justify considering the new information was based only on the Authority’s finding that the visa applicant had not provided any explanation as to why the new information could not have been provided earlier. The Authority did not address other matters potentially relevant to whether the issue of “exceptional circumstances”, which included material which explained why the visa applicant had not previously disclosed the new information.’
Finally, the Full Court in AQU17 considered the decision of the Full Court in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192. Describing the error that was manifested in CHF16, the Full Court in AQU17 stated as follows at [9]:
‘In CHF16, the Full Court likewise held that the Authority erred in determining that it was not satisfied that there were exceptional circumstances to justify considering the new information. The Full Court reasoned that the Authority considered only the fact that the new information, which related to events prior to the primary decision being made, was not brought forward by the appellant and did not take into account why the new information was not brought forward earlier “or any other circumstances”, stating that the Authority “did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims”.
Having regard to the comments of the Full Court above and the relevant decisions, I am not satisfied that the facts in this matter give rise to an error of the type identified in BVZ16, BBS16 or CHF16. The criticism in those cases, as noted above, attaches to the Authority adopting an inappropriately narrow understanding or view of the scope of ‘exceptional circumstances’. In my view, the Authority in this matter did not take such an unduly narrow view when regard is had to the Decision. That an unduly narrow approach was not taken can be seen having regard to the content of the paragraphs of the Decision about which the Applicants complain.
Paragraph [8] of the Decision, which is set out above, deals with additional media reports and country information. The Authority in that paragraph firstly observes that the reports and information post-dated the delegate’s decision and could not have been relied on. These are observations which directly favour the Applicants in this case. The analysis, however, does not stop there. The Authority then comments on the actual nature of the reports, notes that the reports are general in nature and that they do not relate to persons with the characteristics or circumstances of the Applicants. There is also a notation made that the reports are consistent with other media reporting that was before the delegate. By going into this detail, it cannot, in my view, be said that an unduly narrow approach has been taken to the information or reports that are the subject of that paragraph.
Turning to paragraph [9] of the Decision, which is set out above, the relevant information as noted above are media reports and country information that predate the decision of the delegate. In paragraph [9], the Authority states that the Applicants have not explained why the reports were not provided to the delegate. This comment is made in the context of the requirements of section 473DD(b)(i) of the Act, which make it incumbent on an applicant to satisfy the Authority that the information could not have been provided to the Minister. The Authority then goes further in its analysis. The balance of the paragraph deals with the delegate having had more up-to-date reports to hand, and the fact that the Applicants were represented but chose not to provide that material beforehand. This again is demonstrative, in my view, of the proposition that an unduly narrow approach was not taken.
There is then paragraph [18] of the Decision on which much emphasis is placed by the Applicants in this matter. As noted above, paragraph [18] of the Decision deals with the personal claims raised by the Second Applicant.
In respect of paragraph [18] of the Decision, the First Respondent raises a preliminary issue. The issue is that the Second Applicants’ claims or information are not new claims or new information. To make good this proposition, the First Respondent relies on the decision of the High Court in Plaintiff M174/2016, and in particular, the consideration given by their Honours to what may constitute new information. At paragraph [24], Justices Gageler, Keane and Nettle stated as follows:
‘The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event..’
On the basis of the above, the First Respondent then submits that when regard is had to the submission made by the Second Applicant, which is reproduced in Court Book 574-579 (in particular paragraph [11] on page 576), what was being put was essentially speculation about the delegate’s motives, and not a communication of some particular fact, subject, or event as contemplated by the High Court.
Paragraph [11] of the Second Applicant’s submission, as reproduced at page 576 of the Court Book, is set out below:
‘The Delegate concludes that this Applicant has not been sexually harassed or abused in the past, yet how does she come to this conclusion when she has not interviewed this applicant. This Applicant might not have mentioned anything about sexual abuse in the past, but it could have been for the very reason the Delegate states "the majority of sexual cases tend to go unreported due to social stigma." This applicant could well have been sexually abused by authorities or even these Karuna people in the past, but not told her husband for fear of being stigmatised and in a one on one interview with a female Delegate, might very well have opened up to her. This is all speculation, but nevertheless the onus was on the Delegate to interview this applicant and dispel any of the above speculation
I consider there to be force in the First Respondent’s submission. The Second Applicant in that paragraph is not advancing a claim in relation to being sexually abused or harassed. It is difficult to ascertain from the text above what new information or new claim, or what new knowledge of an event, is being put forward. In my view, no actual claim is put forward, and certainly no new information of the type described by the High Court. Indeed when the text above is considered, it is difficult to see what the Authority could actually have done in relation to what is said to be the personal claim.
The point above can be illustrated by comparison to the judgment of Justice Colvin in DFP16 referred to earlier. In that matter, a claim was clearly made that the appellant’s father had trained for six months with the LTTE and therefore the applicant’s profile was greater than previously disclosed. What was advanced there was a particular piece of new information. That stands in contrast to this matter where the Second Applicant submitted that her claims relate to her husband, the First Applicant, and, to the extent there is a sexual harassment claim, there is no claim that was advanced that she actually experienced the sexual abuse or harassment.
It is to be noted that the balance of paragraph [18] of the Decision then makes clear that the Second Applicant was relying on the claims of the primary applicant and makes the observation that the Second Applicant had many opportunities to raise these claims before any decision was made, but did not do so.
For the above reasons, I dismiss ground one of the grounds of review.

Ground 2

The second ground of review in the Application is:
‘In not interviewing the Second Applicant the Second Respondent committed jurisdictional error in that it was legally unreasonable not to do so.’
In considering this ground of review, is important to have regard to the legislative framework that governs the fast track regime set out in Part 7AA of the Act.
The fast track regime contained within Part 7AA of the Act is intended to introduce rapid, efficient and streamlined processing of matters to which it applies. The simplified outline in section 473BA states that Part 7AA ‘provides a limited form of review of certain decisions... to refuse protection visas to some applicants’.
Section 473DB(1) of the Act then mandates that the Authority must review a relevant decision by considering the review material provided to it by the Secretary under section 473CB ‘without accepting or requesting new information’ and ‘without interviewing the referred applicant’.
Section 473DC(1) of the Act then sets out the mechanisms by which the Authority may obtain additional information or documents that were not before the Minister when the Minister made the decision. Of particular relevance is subsection (2) of section 473DC which provides that the Authority ‘does not have a duty to get, request or accept, new information whether the Authority is requested to do so by a referred applicant or by any other person, or any other circumstances’.
The provisions of the Act noted above are consistent with the description of the Authority’s function in the heading to Part 7AA Division 3, Subdivision B as being a ‘Review on the papers’. It is also consistent with the statement in section 473FA for the Authority to pursue the objective of providing a mechanism of limited review.
It is in the context above that ground 2 of the grounds of review needs to be considered. That the statutory context needs to be considered in determining unreasonableness is not controversial: see Minister for Immigration & Border Protection vSZVFW [2018] HCA 30.
In the present proceeding, the Authority did not interview the Second Applicant. Failure to interview the Second Applicant is said by the Applicants to be legally unreasonable.
The Applicants relied upon the obligation to act reasonably as described by the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18.
The Applicants also relied on the discussion of jurisdictional error by Kiefel CJ, Gageler J and Keane J in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at paragraphs [24], [25] and [27]. Paragraph [27] of Hossain contains the following statement:
‘The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.’
In respect of the paragraph above, insofar as it concerns the present proceeding, the Applicants say that the magnitude of the failure to interview is informed in part by the facts. In particular, the fact is that there was an allegation that a group of armed men pointed a gun to the Second Applicant’s head. This was a matter that was relevant to and impacted on the decision of the Authority in that the Authority rejected the allegation that there was serious violence committed against the Second Applicant. The rejection by the Authority of that fact is set out in paragraph [35] of the Decision. The submission was that because the Authority had relied on the rejection of a crucial fact, it was significant, or of sufficient magnitude, within the meaning of Hossain, that the interview take place. In other words, the omission was a material omission.
In Minister for Immigration and Border Protection v Stretton (2016) 329 ALR 491, Allsop CJ, when considering the approach to legal unreasonableness, makes the point, inter alia, that while different language is used, ultimately the question in respect of unreasonableness is could a reasonable Tribunal have come to the same decision on the material that was before it and, in that sense, is there is an intelligible basis for what has been done. This description was used by the Full Court in the decision of DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222.
The Applicants submitted that the failure to interview was unreasonable on two bases as set out below.
The first basis for unreasonableness is that if interviewed, the Second Applicant may have given evidence in support of her own application. The submission is that the seriousness of the assertion that a gun was pointed to the Second Applicant’s head is directly relevant to her claim.
The second basis for unreasonableness is that if interviewed, the Second Applicant may have provided evidence that was corroborative of the First Applicant’s claim. It was said that the Second Applicant’s description of events in which she was a participant could readily be described as important, if not dispositive of, the First Applicant’s claim of risk of harm.
There are a number of aspects of this matter that, when looked at, persuade me that it was not unreasonable for the Authority to not to interview the Second Applicant. As I have noted above, the starting proposition for the consideration of unreasonableness is that it needs to be considered within the statutory framework to which I have referred above.
The touchstone for judging unreasonableness is whether there is an intelligible basis for what was done.
The Authority at paragraph [19] of the Decision has given reasons for why it did not interview the Second Applicant. That paragraph is as follows:
‘Both submissions also assert that the second applicant should have been interviewed in respect of the primary applicant’s claims. Although this is not expressed as a request for an interview with the IAA, I have considered whether an interview is necessary. Section 473DB of the Act provides that subject to Part 7AA, the IAA must review decisions on the papers without interviewing the applicant. Section 473DC also provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or in any other circumstances. The IAA may only consider new information in limited circumstances. Furthermore, there is no statutory entitlement to a hearing. The primary applicant was assisted by a lawyer at the interview and the delegate did not reject any claims or make any adverse credibility findings. Neither the primary nor the second applicant requested that the second applicant be interviewed and there was no post interview submission or request made. Taking all of this into account, I am not satisfied that a further interview with the applicant is necessary or required in the circumstances.’
It is apparent that when paragraph [19] is looked at, the Authority considered whether it was necessary to interview the Second Applicant. The Authority noted the statutory context applicable to it. It also noted the opportunities given to the Second Applicant to advance these claims. Taking those matters into account, the Authority declined to interview the Second Applicant.
The Applicants made the point that what is being reviewed in this Court is the decision of the Authority, and not what occurred before the delegate. That much is true, but the circumstances surrounding what occurred before the delegate are not irrelevant. Those circumstances, among other things, ultimately inform, when all of the facts are considered, whether a particular action is unreasonable.
The other matter relevant to an assessment of what is unreasonable is that at the outset, the Second Applicant expressly relied on the First Applicant’s claims and evidence. Again when the history is looked at, enquiries were made of the Applicants. Those enquiries did not produce any positive response from the Second Applicant and the matter proceeded without her being interviewed before the delegate.
There is then the submissions made by the Applicants that an interview may have resulted in the Second Applicant being able to assert her claim, or alternatively, corroborate the claim of the First Applicant.
Insofar as the latter point is concerned, it ought to be observed that this is not a case where the Authority has generally not accepted the Applicants claims or disbelieved him. At paragraph [26] of the Decision, the Authority accepted that the First Applicant was a member of the Tamil National Alliance (TNA). In paragraphs [32]-[34], the Authority accepted that members of the Karuna group had attended the First Applicant’s home and threatened him. The Authority did not accept, at paragraph [35] of the Decision, that a gun was pointed, but it did accept that the Applicants had been threatened.
When the findings above are considered, the corroborative evidence that might have been adduced in support of the First Applicant’s claims would not have been dispositive of the Applicants’ case. This is because, as noted above, the main aspects of the Applicants’ case were accepted.

Insofar as it might be said that the holding of an interview may have corroborated the Second Applicant’s claims in support of her own application, the reasoning set out earlier is relevant: that is, when the substance of the submissions made by the Second Applicant are looked at, there was not a claim that was actually advanced.
Finally, it is pertinent to observe that even though the Authority accepted many aspects of the Applicants’ claim, it ultimately disposed of the review not on the basis of the particulars of those matters, but because the First Applicant was of a low profile and was not likely to be of any interest to the Karuna Group. So much is clear from paragraph [37] and onwards of the Decision.
When all of these matters are looked at, I am satisfied that there was an intelligible basis for the Authority acting as it did, and that it has not acted illogically, irrationally or unreasonably. For these reasons, the second ground of review must fail.

Ground 3

The third ground of review in the Application is as follows:
‘In failing to consider that the Applicants belong to the social group of failed asylum seekers who departed through Sri Lanka illegally, Tamils from the north and departees who had spent a significant time in a country with a large Tamil diaspora, the Second Respondent committed jurisdictional error by failing to have regard to a significant matter it was obliged to consider.’
The Applicants contend that the characteristics identified by the First Applicant were not so insignificant that a failure to take them into account could not have materially affected the decision of the Authority. It is contended that none of the ways that the Authority characterised the First Applicant’s claim included his belonging to a group of ‘departee[s] who ha[ve] spent a significant time in a country with a large Tamil diaspora’.
In advancing this ground, the Applicants rely on Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40 where Mason J stated at [15]:
‘Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.’
A review of the Decision reveals that the Authority accepted the key factual components that go towards this claim (with the exception of the location, where the Authority correctly found that the husband came from the East rather than the North of the country).
The Authority accepted that the Applicants were Tamil Hindus from the Eastern Province of Sri Lanka. That finding is made at paragraph [23] of the Decision.
The Authority also accepted the fact that the Applicants had departed Sri Lanka illegally and would be regarded as being returned asylum seekers, who have sought asylum in Australia: see paragraphs [60] to [69] of the Decision.
Having made the findings above, the Authority then assessed the risks to the Applicants.
The Authority assessed whether Tamil Hindus from the Eastern Province of Sri Lanka face a real chance of serious harm. The detailed consideration by the Authority in respect of this issue commences at paragraph [50] of the Decision and concludes at paragraph [59] of the Decision, with the Authority concluding at [59] that ‘I find that the applicants do not face a real chance of serious harm on the basis of being Tamil Hindus from the Eastern Province’. A similar finding is also made at paragraph [73] of the Decision.
The Authority then assessed whether the Applicants, having ‘sought asylum in Australia’ and having being satisfied that the applicants had ‘departed Sri Lanka illegally’, faced a serious chance of harm. At paragraph [62] of the Decision, the Authority found that ‘Having considered all of this information, I am satisfied that there is not a real chance that the applicants will be harmed or mistreated because they are returning asylum seekers’.
Furthermore, the Authority considered all of the Applicants claims cumulatively in paragraph [69] of the Decision which provides as follows:
‘Overall, having considered the primary applicant’s claims separately and cumulatively, I am not satisfied that the primary applicant will face a real chance of serious harm on the basis of being: a supporter of the TNA; opposed to the TMVP and Karuna group; a Tamil Hindu from the East; or a returned asylum seeker who fled Sri Lanka illegally. As the second and child applicants’ claims arise from the primary applicant’s claims, I am not satisfied that these applicants face a real chance of serious harm on the basis of the primary applicant’s claims. I am satisfied that the second applicant does not face a real chance of harm on the basis of her gender and that the child applicants do not face a real chance of serious harm on the basis of their gender or ages, or if the primary and second applicants are briefly detained.’
Having accepted the key factual components, the Authority proceeded to deal with the claim that the applicant did not fit the profile of an asylum seeker who was likely to attract adverse interest. The Authority found that only asylum seekers with ‘real or imputed profiles, such as involvement with the LTTE or anti-government profiles’ are likely to attract interest – see paragraph [62] of the Decision. The Authority found that the First Applicant did not have such a profile.
The First Respondent submitted that when this claim is looked at, the matter is more akin to the circumstances that the Full Court of the Federal Court of Australia sought to characterise in the matter of Applicant WAEE v Minister for Immigration and Multicultural and Indigenous and Affairs [2003] FCAFC 184 at paragraphs [46] and [47]. Those paragraphs are as follows:
‘[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’
As I have noted above, the Authority made findings in relation to the Applicants being Tamil Hindus, being failed asylum seekers and being persons who would be seen to be returned asylum seekers from Australia. Having made those findings, I am not prepared to infer that the Authority failed to consider this claim. On the contrary, it is apparent from what I have referred to above that the claim was considered.
For the reasons set out above, I dismiss ground 3 of the grounds of review.
In light of the above, the application for review filed by the Applicants is dismissed, with costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 28 June 2019