CJF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 410
•8 April 2022
FEDERAL COURT OF AUSTRALIA
CJF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 410
Appeal from: CJF18 v Minister for Immigration [2019] FCCA 2780 File number(s): NSD 11 of 2020 Judgment of: RARES J Date of judgment: 8 April 2022 Catchwords: MIGRATION – whether Immigration Assessment Authority erred in finding document not before, but referred to in material before, delegate not “new information” pursuant to s 473DD of the Migration Act 1958 (Cth) – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 473DD Cases cited: AUS17 v Minister for Immigration and Border Projection (2020) 269 CLR 494
CJF18 v Minister for Immigration [2019] FCCA 2780
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 47 Date of hearing: 8 April 2022 Counsel for the Appellant: Appellant was self-represented Counsel for the First Respondent: Mr J Kay Hoyle Solicitor for the First Respondent: Mills Oakley ORDERS
NSD 11 of 2020 BETWEEN: CJF18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The appellant be granted leave to rely on the ground of appeal that the Federal Circuit Court erred in failing to find that the second respondent erred in failing to be satisfied pursuant to s 473DD of the Migration Act 1958 (Cth) that there were exceptional circumstances so that it should consider three letters that the appellant had provided to it.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court to refuse the appellant’s application for constitutional writ relief in respect of the decision of the Immigration Assessment Authority made on 10 April 2018 to affirm the decision of the Minister’s delegate made on 16 June 2017 not to grant the appellant a protection visa: CJF18 v Minister for Immigration [2019] FCCA 2780.
Background
The appellant is a citizen of Sri Lanka and a Tamil who was from and lived in Mullaitivu. His essential claim was that he feared that he feared harm from the Sri Lankan authorities, including the Criminal Investigation Department (CID), on the basis of an imputed connection with the Liberation Tigers of Tamil Eelam (LTTE) because of his activities during the civil war between 2005 and 2009.
The appellant arrived in Australia in November 2012. He made a number of claims that hinged upon his fear of having imputed to him a connection to the LTTE which the CID or other Sri Lankan authorities would use as a reason to harm him. He claimed that he had undertaken four days of training in June 2006 when members of the LTTE asked all students in Mullaitivu to undertake training to protect themselves lest the LTTE would not allow them to continue their studies. Towards the end of that period, he claimed that the Sri Lankan Army had bombed the area where women were being trained and, because he was scared that he would be bombed and forced to fight for the LTTE, he ran away with about 10 other people on the fifth day of the training and did not return to school thereafter.
He claimed that he stayed at his mother’s house and worked on the family farm to avoid the LTTE. In 2008, he claimed to have moved to another city but was stopped and questioned by the LTTE about crossing the line of control. He claimed that he completed his studies in the other city in August 2009 and then worked for the Red Cross for about 18 months. He claimed that sometimes he had to go to a camp where suspected LTTE members were held and help to take injured people to hospital or refugee camps holding Tamil civilians. He claimed he began rebuilding his family’s property at Mullaitivu and by mid-2010 his mother, sister and brother had moved back there.
The appellant claimed that one of the persons with whom he had stayed and undertaken the training with him had been kidnapped by the CID, held on the fourth floor in its Colombo headquarters and eventually released about two years later. He claimed that he was afraid that he would be taken because the person whom he knew had been taken as a result of his also having been suspected of having LTTE connections.
He claimed that in about 2012 he was part of a group of five or six other Tamil men who were approached by another Tamil speaking man, whom the appellant suspected was a Muslim, and knew one of the members of the group. He claimed that that man asked the group if any of them had been involved with the LTTE or knew anyone who had been. He claimed that two or three days after that incident his friend, RG, disappeared and, after this, he suspected that the man who had questioned the group had been associated with the CID. He claimed that three or four days later a person came to his mother’s house and asked where the appellant was and that his mother believed the inquirer was from the CID. She informed the inquirer that the appellant had gone away.
The appellant claimed to have left Sri Lanka a few months after that incident at his home and that two months after he left Sri Lanka, two persons came to his mother’s home and again inquired where he was. He claimed that his brothers asked those persons who they were. They said that they knew the appellant, but the brothers believed they were from the CID because they liked Muslims and spoke Tamil in a different way. The appellant claimed that his mother had told him people had come to the house about three times since then. He said that she had told them that the appellant was away studying, but her neighbours had suggested that the inquirers were also from the CID. The appellant claimed that RG had been released about two or three years after his disappearance and that he, the appellant, was concerned that RG might have told the CID that the appellant had been involved with the LTTE with RG and had given the CID that information to secure his release.
He claimed that in about April 2016 his mother received a letter at her house concerning the appellant and his brother K, requiring each of the brothers to attend an interview at an office of the CID and that his mother still had the letter. The appellant claimed that, if he were returned to Sri Lanka, he would be detained, questioned by the CID and subjected to serious harm. He also claimed that he feared harm on return to Sri Lanka as a failed asylum seeker because the authorities would want to know where he had been, would question him on return and would impute him with LTTE connections because of his provenance from Mullaitivu.
The proceeding before the delegate
The appellant had the assistance of a migration agent in preparing his safe haven enterprise visa application that he submitted to the Minister’s Department on 19 July 2016. He made a typed statement in English in which he made the claims, that I have summarised above, as the basis for his claim that he feared serious or significant harm were he to be returned to Sri Lanka.
During the interview with the delegate, the transcript of which was in evidence, the appellant made two different references to his mother’s receipt of a letter in about April 2016 from the CID to which he had referred in his typed statement. First, he told the delegate that there was a letter in emails on his mobile phone, which he was unable to print out, that required him and his brother to attend for interrogation by the CID. He told the delegate that he would like the delegate to print the letter out, but the delegate said that this was not possible but that he could email it to the Department. Secondly, later in the interview, the delegate returned to questioning him about the matter as follows:
Delegate: Now, you say you have the letter from the CID in your email. Is that right?
Appellant: There was a small piece of paper in which the name and address which was given to us by the CID and when my brother and mother was asked to go for inquiry they brought the piece of paper and CID has obtained the letter – piece of paper back. There was a person – there was a JP in Mulliyawalai [which is a part of Mullaitivu] my mother and my brother approached, took the JP with them to the authorities and a letter in detail was given at the time.
…
Delegate: Where is that small piece of paper now?
Appellant: He didn’t obtain. They didn’t return that. It is not valid since there was no (indistinct).
(emphasis added)
The delegate found that the appellant had never been detained or questioned by the Sri Lankan authorities about having any LTTE connections, and it was only after he left Sri Lanka that he first had asserted authorities had looked for him. The delegate found that the appellant had given inconsistent evidence regarding the circumstances of his departure from Sri Lanka, his interactions with Sri Lankan security forces, his education, and residential history. He found his claims about his interaction with the Muslim man from the CID and his group of friends were vague, unconvincing, and implausible. The delegate concluded that Sri Lankan authorities had never had an adverse interest in the appellant for being an ex-LTTE member, or as an imputed LTTE supporter.
The delegate found not credible the claim that the appellant had lived in hiding from the LTTE for much of the previous two years before he obtained a pass to travel to the new area, and did not accept that he had been forced to undertake any training with the LTTE while at school. The delegate found that, at the interview, the appellant had told him that his mother had been given a letter by the CID asking the appellant and his brother to report to them, and that the letter was in the appellant’s email, but, despite being invited to do so within seven days by the delegate at the conclusion of the interview, the appellant had not provided it to the Department. The delegate found that the appellant had not provided any supporting evidence for his claims regarding the detention and release of RG, and did not accept that the appellant had left Sri Lanka because he had a genuine fear of Sri Lankan authorities at that time.
The delegate found that the appellant’s evidence was inconsistent, contradictory, and implausible to the point where he was not a credible witness. The delegate did not accept that he had left Sri Lanka because he had a genuine fear of harm from the CID, Sri Lankan Army, or any other Sri Lankan authority, or that the Sri Lankan authorities had shown any interest in him after his departure from Sri Lanka, or would have any such adverse interest in him were he to return there. The delegate did not accept that the appellant’s mother had been given a letter from the CID asking him or his brother to report for an interview. The delegate found that the chance of him being imputed with an LTTE connection for reasons of his Tamil ethnicity was remote. The delegate found that the appellant was not politically active in Sri Lanka, did not have a political profile of any kind, and that he would not be imputed with any connection to the LTTE and, accordingly, did not have a well-founded fear of persecution for that reason. The delegate also found that, based on country information, young Tamil men from former LTTE-controlled areas were not being systematically targeted or subjected to serious harm amounting to persecution because of their race and or area of origin.
The delegate found that the appellant was of no interest to the Sri Lankan authorities for any reason when he left that country and that, given the improved situation in the north of Sri Lanka, as well as the appellant’s lack of any profile, real or perceived, connecting him to the LTTE, the chance of him facing persecution for that reason was remote. The delegate also rejected his claim that he had a real chance of harm for reason of being a failed Tamil asylum seeker who departed illegally, because the delegate was not satisfied that he was a person of interest to the Sri Lankan authorities for any reason when he left the country.
The delegate found there was no information to suggest that Tamils who had lived or stayed abroad faced serious harm at Colombo airport or in their home area on their return simply due to the time spent out of Sri Lanka, or being a failed asylum seeker, and therefore the appellant did not have a well-founded fear of persecution on that ground. The delegate also found that, when returned to Sri Lanka, although the appellant might be held for a short period on remand as an illegal departee, there was no information that could suggest that returnees were held in conditions amounting to ill treatment while on remand. The delegate found that any such detention would not amount to serious harm because it would involve only a short period of detention to facilitate the processing of any charges and fines. Accordingly, the delegate rejected any claim for complementary protection for the same factual reasons as above.
The proceeding before the Authority
Relevantly, s 473DD of the Migration Act 1958 (Cth) provided:
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 appellant was assisted by a solicitor-migration agent in his application for review by the Authority who provided numerous materials to it. Relevantly, on 19 July 2017, the appellant’s solicitor-migration agent provided certified English translations of three brief letters appearing to emanate from the Sri Lanka police, dated 9 September 2012, 4 August 2015 and 9 April 2016 (the three CID letters). These letters are in substantially the same form. The most recent of those three, dated 9 April 2016 (the 2016 CID letter), stated:
Please inform [the appellant] residing at … [Mullaitivu] that copies of the telephone messages given on 09-09-2012 and 04-08-2015 was handed over to his younger brother [K]. Inform him to be present at the 04th floor of Colombo Police Headquarters on 15/04/2016 at 09.30 am to get a statement about whether he had handed over the copies to his brother to appear at the 04th floor of Colombo Police Headquarters. Get a reply.
Chief Headquarters Inspector
The Authority referred to a number of emails from the solicitor-migration agent providing information to it that had not been before the delegate. Those included submissions and the three CID letters.
The Authority considered, pursuant to the requirements of s 473DD, whether it should receive the material in the three CID letters. The Authority found that the 2016 CID letter would appear to be the document to which the appellant had referred in his typed statement forming part of his visa application and in the interview with the delegate. The Authority noted that the delegate had indicated to the appellant that he was unable to allow him to print that document from his email using Departmental computers for security reasons, but had given the appellant further time to submit the document to which he referred after the interview and had suggested that the appellant forward the email. The Authority said that, after the interview, the appellant had submitted further information including a letter from a Justice of the Peace, but had not submitted any correspondence from the CID. The Authority noted that it was unclear whether the 2016 CID letter was what the appellant had been unable to print from his email. But, if that were the case, it found that there was no explanation as to why he had not forwarded it to the delegate as suggested. The Authority noted that if the 2016 CID letter were the same one to which the appellant was referring during the interview, then it was not a document before the delegate and so would be new information.
It found there had been no explanation as to why either the 2012 or 2015 CID letters had not been submitted to the delegate. The Authority then said that it was not apparent that the appellant had claimed previously that he or his family had received correspondence from the CID before 2016, and according to his visa application, he was still in Sri Lanka in September 2012, when the first CID letter was dated. It noted that the appellant had not previously made a claim that he had been requested to attend an investigation or that any written correspondence had been received by him or his family in 2012. It found that it was not apparent that the appellant had previously claimed to have been required to attend an investigation in August 2015.
The Authority found that the credibility of the 2016 CID letter was affected because the Authority was concerned that it had references to the two earlier 2012 and 2015 CID letters. The Authority found that it was implausible that, if the appellant had not complied with a request to attend an investigation in September 2012, the CID would not have made any further requests until around three years later, and that, if he had again failed to attend for the investigation in August 2015, the CID would delay eight more months before making a further request.
The Authority observed that the content of the three CID letters suggested that they were internal messages between different police departments or branches, comprising requests that the appellant be told certain things and asked for his reply. It observed that it was unclear why, first, such documents would come to be given to the appellant or his family and, secondly, the messages were addressed to a police station not in his home area of Mullaitivu but in Vavuniya where neither he nor his family lived at the relevant time. The Authority concluded that it had “considerable concern over the veracity of those documents”.
It found that the three CID letters either predated the delegate’s decision or referred to events that occurred prior to it. It found that the appellant had not given any explanation as to why the three CID letters had neither been sought nor provided earlier. It noted that he was educated and had obtained and submitted other material to support his claims including after his protection visa interview.
Based on the Authority’s concerns about the credibility and value of each of the three CID letters, it was not satisfied that there were exceptional circumstances that would justify a consideration of them as new information.
The Authority went on to then consider the appellant’s claims. The Authority accepted the appellant’s claim to have kept a low profile out of his fear of forcible recruitment by the LTTE. It accepted that he had attended about five days of self defence training required of school children but found that beyond this, he had had no further involvement with the LTTE or was even an LTTE member or cadre.
The Authority found that, based on newspaper articles that the appellant had submitted, RG had disappeared in December 2011 which was about 10 months before his October 2012 departure from Sri Lanka and that this circumstance undermined the appellant’s evidence. It also found that the level of interest in him, which the appellant claimed to have been shown by the CID following his departure, was difficult to reconcile with its apparent lack of interest in him prior to then.
The Authority concluded that, because of its concerns as to his credibility, it did not accept that there was any connection between the appellant and his friends having been stopped in the street by the Muslim person, who may have been a CID agent, and asked about any involvement with the LTTE and the disappearance of RG or that that inquiry had led to any adverse interest in the appellant. It did not accept that he had ever been threatened, the authorities had searched for him prior to or following his departure or had questioned his family about him or that he had been sent a letter from the CID asking that he and his brother attend an interview.
Given the Authority’s concerns about the appellant’s credibility, it was not satisfied that his brother’s reasons for going to Switzerland had any connection to the appellant and that whatever the reason for the detention of RG or another friend of the appellant, it did not accept that the appellant had ever been identified as a person of any interest to the Sri Lankan authorities. It found that the appellant’s claim that RG or others had provided information about him to the Sri Lanka authorities to be far-fetched and speculative. It did not accept that the appellant had a profile that would be of any interest to the Sri Lankan authorities. It found that considering the appellant’s profile in light of the country information, the risk that he would be viewed as a person of any interest or be imputed with views in favour of the LTTE or Tamil separatism and suffer harm for that reason was remote.
The Authority accepted that the appellant would be brought to the attention of the Sri Lankan authorities because the manner of his return to Sri Lanka and that they might infer that he had sought asylum in Australia. It accepted country information that all involuntary returnees were processed by Sri Lankan authorities for verification of their travel documents, identity and any outstanding criminal matters, including checks about their immigration intelligence databases. It was not satisfied, based on country information, that having claimed asylum or having spent a period of time abroad would lead to adverse interest or otherwise result in any harm to the appellant. It did not accept that the Sri Lankan authorities would impute that he would have an anti-government opinion or a pro LTTE or Tamil separatist opinion simply because the appellant had claimed asylum or departed Sri Lanka illegally, or because of his Tamil ethnicity, or that there was any real chance that he would be harmed for those reasons.
It found that because he was not a person of any interest to the Sri Lankan authorities, he would not be viewed as a person of any concern or identified by any persons working with the authorities at the airport.
The Authority found that based on country information from the Department of Foreign Affairs and Trade, the appellant would be charged with an offence under the Immigration and Emigration Act but it rejected his claim that he may be detained for a longer period because he would not have a family member present to bail him out. It found that the appellant had not provided any detail or evidence to indicate why a family member could not travel to Colombo to provide bail for him if required. Accordingly, it found the prospect of him being detained for anything beyond a brief period of a few days or facing any greater penalty than a fine, to be remote. It found that because he was not a person of any adverse interest to the authorities, it was not satisfied there was a real chance of him being harmed during the process of routine investigation on his return or during any brief detention.
The Authority concluded that, having cumulatively considered his history, circumstances, and profile, it was not satisfied there was a real chance of the appellant being viewed as a person of any interest to Sri Lankan authorities or otherwise harmed by them, or any other persons in the reasonably foreseeable future beyond having imposed on him the penalties that he would face in the ordinary course of Sri Lankan law for his illegal departure. Accordingly, it concluded that he did not have a well-founded fear of persecution within the meaning of s 5J of the Act. For the same reasons, based on the country information, it found that Australia did not owe any complementary protection obligations and affirmed the delegate’s decision.
The trial judge’s reasons
The trial judge was concerned that the way in which the Authority had approached the evaluation of the three CID letters may have been erroneous. His Honour summarised the appellant’s claims, his history and the findings of the delegate and the Authority. His Honour noted that, based on the transcript of the hearing before the delegate, it was unclear whether the 2016 CID letter was the subject of the discussion with the delegate. He noted that the Authority had not been able to identify anything provided to it that resembled a letter from the CID concerning the appellant written around the same time. His Honour found that it was possible that during the course of the hearing before the delegate, the appellant had been referring to the letter from the Justice of the Peace rather than the 2016 CID letter throughout the discussion. Given that the only claim made in the application for review was that the decision of the Authority was “wrong”, his Honour crystallised the issue which he considered merited review as being whether the Authority had erred in its treatment of the 2016 CID letter.
The trial judge accepted the Minister’s argument that the 2016 CID letter was new information and that the Authority had not erred in coming to the same conclusion. His Honour concluded that the 2016 CID letter was not the same information as constituted in what the appellant had told the delegate, about a letter that the CID sent to his mother requiring him and his brother to attend for questioning. His Honour observed that the form of each of the three CID letters suggested that they were internal police communications. He noted that the appellant was seeking to argue that the three CID letters corroborated his case, and should have been received as new information by the Authority. However, after noting that the Authority had found that the 2016 CID letter was not the same as the information that the appellant had given to the delegate, and was new information, his Honour concluded that it had been correct to treat that letter as such, and to apply s 473DD so as to find that the three CID letters should not be considered by it.
His Honour found that the appellant had been given the opportunity by the delegate to provide corroborative material, including documents such as the 2016 CID letter, but had chosen not to do so. He reasoned that the scheme of Pt 7AA of the Act would be undermined if a review applicant could raise a particular claim before the delegate, but fail to provide corroborative materials in his or her possession, especially after being offered an opportunity to do so, and that after his or her claim was rejected by the delegate, the review applicant could then seek to improve his or her position on the review by providing that corroborative material to the Authority on the basis that the information in that material was not new information, but information that had already been before the delegate, and should be considered by the Authority on that basis.
Accordingly, his Honour rejected what he perceived to be the appellant’s argument that the Authority should not have treated the 2016 CID letter as new information, but should have accepted it as having been material before the delegate. His Honour then found that, even if that reasoning were wrong, he was not satisfied the Authority had committed any jurisdictional error because, realistically, there would not have been any different result. That was because of the Authority’s adverse credibility findings about the appellant’s evidence and its finding that he had never been threatened or been the subject of any interest by Sri Lankan authorities prior to his departure for Australia. For those reasons, his Honour dismissed the application with costs.
The appellant’s submissions on the appeal
The appellant’s notice of appeal raised two grounds and during the course of argument he formulated a third, none of which he formally raised below. The Minister, fairly, did not oppose, or suggest any prejudice, were I to grant the appellant leave to raise the new grounds, and argued them on their merits. I will deal with the three grounds on their merits. The grounds were in substance that his Honour erred in failing to find that the Authority:
(1)had denied the appellant procedural fairness or failed to complete its statutory task because it failed to consider the appellant’s claims to fear serious or significant harm by reason that he would be imputed with links to the LTTE due to his status as a failed asylum seeker;
(2)had failed to have regard to his answer to question 33 of his visa application, namely that his religion was Hinduism; and
(3)erred in finding it was not satisfied that there were exceptional circumstances to justify it in considering the three CID letters as new information pursuant to s 473DD.
The appellant argued that the three CID letters established that he would face serious or significant harm were he to be returned to Sri Lanka and that people who went to the fourth floor of the CID headquarters “did not come back”. He referred again to his claims about the experience of RG and his concern that RG had passed on information to the authorities that would be adverse to the appellant while he was detained for two or three years.
The appellant, in addressing me, accepted that his second ground of appeal raised no issue because he had not been concerned that he would be at risk of any harm by reason of his Hindu beliefs. He contended that his real concerns comprised his consistent claims that he feared being perceived as associated with the LTTE and would be harmed for that reason, including as a failed asylum seeker. He submitted that the Authority should have considered the three CID letters as new information in support of his claim.
Consideration
In AUS17 v Minister for Immigration and Border Projection (2020) 269 CLR 494 at 502 [12] Kiefel CJ, Gageler, Keane and Gordon JJ held that, in determining whether to consider new information under s 473DD, the Authority must first assess the information against the criteria in each paragraph of s 473DD(b) and then take the outcome of that exercise into account in its assessment against the criterion specified in s 473DD(a), with each step being a mandatory relevant consideration.
It is important to appreciate that the reasons of an administrative decision-maker must not be examined with an eye finely attuned to error and need to be read fairly as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 195 [59]–[60] per French CJ, Bell, Keane and Gordon JJ. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ said:
… a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker ([Collector of Customs v] Pozzolanic [Enterprises Pty Ltd] (1993) 43 FCR 280 at 287). The Court continued (Pozzolanic 43 FCR at 287): “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
(emphasis added)
In my opinion, the Authority correctly applied s 473DD to the issue of whether it could consider the three CID letters as new information. First, it addressed, under s 473DD(b)(i), the appellant’s lack of explanation as to why the three CID letters had not, or could not have, been provided to the delegate prior to his decision. It found that the appellant had given it no explanation about that failure. It addressed the issue as to whether the appellant was referring to the 2016 CID letter as being an email on his phone and noted that it was unclear from the transcript of the interview with the delegate, whether he was referring to that document or to the letter from the Justice of the Peace. The Authority found that, after the interview, the appellant had submitted a letter from the Justice of the Peace, not the 2016 CID letter, and that accordingly, there was no explanation as to why he had not been able to submit the 2016 CID letter earlier than in the review before the Authority.
Secondly, the Authority found, in addressing s 473DD(b)(ii), that the three CID letters were not credible personal information because it had considerable concern over their veracity. Thirdly, in light of those matters, it concluded, in accordance with s 473DD(a), that it was not satisfied that there were exceptional circumstances that would justify it considering any of the three CID letters as new information.
I am unable to perceive any arguable jurisdictional error in the way in which the Authority approached that task: AUS17 269 CLR at 502 [12]. For those reasons, rather than the reasons given by the trial judge, the proposed ground 3 has no merit.
Contrary to ground 1, the Authority, in fact, considered the appellant’s claims to fear harm from being imputed with links to the LTTE due to his status as a failed asylum seeker. It expressly rejected those claims in its finding that he had never been a person of any interest to the Sri Lankan authorities and would not have imputed to him any LTTE profile were he to return from Australia as a failed asylum seeker (par 36 of its reasons). Accordingly, this ground must also fail.
Conclusion
For these reasons, having considered the nature of all of the appellant’s claims, bearing in mind he is representing himself, I have been unable to perceive any other possible basis on which it could be said that the Authority committed a jurisdictional error. It considered all of his claims and found they did not give rise to protection obligations.
I am of opinion the appeal must be dismissed with costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 19 April 2022
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