CNE18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 33
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CNE18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 33
File number(s): SYG 1371 of 2018 Judgment of: JUDGE LAING Date of judgment: 22 January 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA unreasonably failed to consider obtaining further information – whether the IAA failed to consider an integer of the applicant’s claim(s) – application dismissed Legislation: Migration Act 1958 (Cth) ss 473DC & 473DD Cases cited: AAQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 759
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Division: General Number of paragraphs: 45 Date of hearing: 14 November 2024 Place: Sydney Solicitor for the Applicant: Mr S Hodges of Hodges Legal Solicitor for the First Respondent: Ms Q Ren of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1371 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNE18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 JANUARY 2025
THE COURT ORDERS THAT:
1.The application be 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 LAING:
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sri Lanka who applied for a protection visa on 7 March 2016.
On 30 August 2017, the Delegate refused the application. The matter was subsequently referred to the IAA for review.
On 3 May 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that it had received new information including a number of new claims and documents. These included a report from a doctor dated 20 September 2017, five photographs, an updated letter in Tamil from the applicant’s father with an English translation, a video clip of the applicant’s father and an English translation of an audio-visual clip from the applicant’s father (at [5]-[6]). The IAA declined to consider information that did not comply with the IAA Practice Direction and was not satisfied that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to other information (at [3]-[13]).
The IAA rejected the applicant’s assertions regarding issues he claimed to have experienced at the interview before the Delegate, including assertions concerning the interpreter and minimal information (at [14] and [16]). The IAA also rejected the applicant’s contention that there was an issue concerning the validity of his visa application (at [15]).
The IAA accepted that:
(a)the applicant was a Tamil Christian, whose identity, history of travel overseas and area of origin were as claimed (at [20]-[23]);
(b)the applicant may have been injured during the conflict in Sri Lanka and may have scars as a result (at [28]);
(c)the applicant may have suffered psychological trauma during the conflict (at [28]);
(d)the applicant was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) and received training (at [33]);
(e)the applicant was not involved as a combatant and, after one month, escaped the camp and lived in various places in Sri Lanka ([33]);
(f)the army were aware the applicant had been trained by the LTTE, and they questioned him about the training he undertook and the location of weapons (at [33]);
(g)up until the time he left Sri Lanka, the applicant was required to report to the army camp when called, and was interrogated and mistreated at times by the Sri Lankan authorities when reporting (at [33]);
(h)the applicant was part of a group asked to provide information to the Sri Lankan authorities (at [33]);
(i)the applicant’s father was an LTTE member, who was questioned on occasion by the authorities (at [33]);
(j)the applicant’s freedom of movement may have been restricted during times when he was required to report, however, the IAA did not accept the applicant’s movements were significantly restricted during the period claimed (at [35]); and
(k)the applicant was required to report to the authorities from time to time, when requested, until he left for Australia (at [36]).
The IAA did not accept that:
(a)the applicant’s father held a prominent role in the LTTE (at [33]);
(b)the applicant’s level of reporting or interest from the authorities was to the extent claimed (at [34]);
(c)the applicant was unable to do anything alone, or he would be taken by the authorities (at [34]);
(d)the applicant’s father was questioned to the extent claimed (at [34]);
(e)the applicant suffered harassment on account of his father’s involvement with the LTTE (at [34]);
(f)the applicant’s father had to leave Sri Lanka due to the level of interest in the applicant’s departure (at [34]);
(g)the possibility that the applicant’s involvement with the LTTE would be considered other than very low profile was other than “extremely remote” ([36]);
(h)the applicant was a person of interest to the Sri Lankan authorities at the time of his departure to Australia (at [36]); or
(i)the applicant’s profile would cause him to be of adverse interest to the Sri Lankan authorities or any other group (at [45]).
The IAA found that the monitoring, harassment and questioning the applicant encountered in Sri Lanka was consistent with the routine treatment of Tamils at the time described in the country information, rather than resulting from any specific security threat posed by the applicant (at [33]).
Based upon available country information, the IAA did not accept that the applicant would face a real chance of harm if he returned to Sri Lanka as a result of being a Tamil male who originated from a former LTTE controlled area, or as a result of his or his father’s LTTE involvement (at [45]).
The IAA accepted the Sri Lankan authorities may infer that the applicant sought asylum in Australia due to the manner of his return. The IAA accepted that the applicant may be detained for a limited period, in potentially unpleasant conditions, and may incur a fine due to the unlawful manner of his departure. However, the IAA did not accept that this would result in serious or significant harm. Further, the IAA did not consider that such penalties or processes would be discriminatory in nature or application (at [49]-[52] and [57]).
The IAA was not satisfied that there was a real chance the applicant would suffer harm as a Tamil, because of his origins in the Northern province, as a result of any actual or imputed connection with the LTTE, or for seeking asylum in Australia (at [53] and [58]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the criteria for a protection visa and affirmed the Delegate’s decision (at [54]-[59]).
PROCEEDING BEFORE THIS COURT
The applicant commenced the current proceeding through an application filed on 16 May 2018. The matter remained in the central migration docket for some years, before it was docketed to me and listed for hearing. By the time that the matter was listed for hearing, the applicant relied upon an amended application attached to submissions filed on 4 November 2024 containing the following grounds:
PROPOSED NEW GROUND 3
The IAA has incorrectly applied the provisions of S.473DD of the Act.
PARTICULARS
(a)The Applicant sent a quantity of material to the IAA and asked for it to be considered;
(b)The material included country information, a medical report, photos, statements, videos and submissions.
(c)The above material fell into two main groups. The first was evidence and corroboration of the Applicant’s claims that he was scarred. The second group related to the Applicant’s father, his role in the LTTE and post war events including torture, escape to [another country] and eventual grant of protection in [another country].
(d)The information relating to the Applicant’s scarring was rejected by the IAA which then found in any event that the Applicant was scarred.
(e)In relation to the information concerning the Applicant’s father, the IAA observed that there was no reason it could not have been produced earlier and then went on to find (in a manner which forms the substance of Ground 4) that the information was not credible.
(f)The Applicant submits that the IAA placed undue emphasis on the fact that the (father’s) information was not produced earlier).
PROPOSED NEW GROUND 4
That the process by which the IAA reached its decision was unreasonable.
PARTICULARS
(a) The delegate interviewed the Applicant on 26 June 2017;
(b)The delegate found the Applicant to be plausible in relation to his main claims.
(c)The delegate did not have the (father’s) information at the time and so there was no examination of it, its provenance, consistency and the like.
(d)The IAA essentially rejected the (father’s) new information and gave the reasons set out in paragraph 9 of the decision;
(e)The manner in which the IAA dismissed the new information indicated that it could well have assisted the Applicant and been relevant to the decision.
(f)Many of the reasons used by the IAA to reject the information could have been explored by the IAA using one or more of the means open to it to gather and consider new information. Those means include interview, telephone, written answers and the like.
(g)The failure by the IAA to consider getting more information in order to address its concerns was unreasonable.
PROPOSED NEW GROUND 5
The IAA failed to consider an integer of the Applicant’s claim.
PARTICULARS
(a)The Applicant’s representative made a submission to the IAA to the effect that the Applicant was at risk on return to Sri Lanka because of scarring. This submission was supported by country information about the risk if authorities discover scarring.
(b)The representative sent photos and a medical report relating to the scarring;
(c) The IAA in its findings agreed that the Applicant did have scarring;
(d)The IAA went on to fail to consider the risk to the applicant from the scarring because “the applicant does not claim that he fears harm resulting from any physical or mental condition.
(e)The IAA’s reason for not considering the scarring was wrong, it having been specifically raised in the representative’s submissions.
(f)The representatives’ submissions specifically mention the risk of authorities discovering scarring if persons are detained for “other reasons”. The IAA found that returning refugee applicants, such as the Applicant, undergo checks on arrival.
(As per the original)
Ground 3 – s 473DD of the Act
Ground 3 contended that the IAA erred in applying s 473DD of the Act, which was as follows:
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 applicant relied upon AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17). In that case, it was stated at [10]-[11] per Kiefel CJ, Gageler J (as his Honour was), Keane and Gordon JJ (footnotes omitted):
10.Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
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.
The IAA described new information that had been provided, including the context in which it had been provided, at [3]-[13] of its decision. At [9], it assessed information relating to the applicant’s father as follows:
9.With regard to the letter from the applicant’s father, the transcription of video, the video of the applicant’s father and photograph of identity cards, in an email dated 28 September 2017 the applicant’s representative indicated it has not been possible for the applicant to get in touch with his father until now. The letter is undated, although the translations appear to have been obtained after the delegate’s decision and no information has been provided as to when the videos were recorded or the photograph taken. No information has been provided about exactly when the applicant was contacted by his father, although the inference is that it was recently before submission of the material, nor has any documentary evidence been provided to support that the contact occurred by Facebook. The information relates to events said to have occurred some time ago, including during the war. Although the applicant told the delegate his father disappeared in 2014, that his uncle got a call from the applicant’s father from [a country], and that his father did not give any contact details, the applicant has not satisfied me the information could not have been provided prior to the delegate’s decision. In addition, the claim that his father was also a bodyguard for a senior LTTE officer appears inconsistent with him being the head of the Economic Division. I also note that no information has been provided as to what information was received about the applicant’s father that led to the intensity of inquiries worsening, and in any event that claim is inconsistent with the applicant’s evidence at the SHEV interview that his father left for [another country] because he was unable to tolerate the torture he encountered because of the applicant fleeing the country. I note no explanation has been provided for the differing explanation of the interest in the applicant’s father. With regard to the video of the applicant’s father showing his identification cards, photograph of the identity cards, and the transcript of video of the applicant’s father, I do not consider these add anything to the materials before me. Although it appears from the identity cards that the applicant’s father has been granted refuge in [another country], no details have been provided about the reason for that protection being granted. Given the inconsistencies noted above and the lack of detail contained in the information from the applicant’s father, the applicant has not satisfied me the information is credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. Taking into account all the circumstances, I am not satisfied there are exceptional circumstances to justify this new information being considered.
At [11], it considered:
11.With regard to the claim the applicant’s father was killed by the army, I note no other information had been given regarding the circumstances in which this is said to have occurred, or when this occurred. More significantly, it appears to directly contradict other information provided in the submission relating to the father. A number of documents have been provided by the applicant’s father regarding him leaving Sri Lanka and being in [another country]. At the SHEV interview the applicant indicated his father left Sri Lanka for [another country at a particular time]. If this is indeed a new claim, the applicant has not satisfied me as to either of the matters in s.473DD(b).
The applicant contended that the IAA “placed undue emphasis on the fact that the (father’s) information was not produced earlier”.
I am not persuaded that this has been demonstrated. It is not clear that this consideration necessarily informed the IAA’s analysis of s 473DD(b)(ii) at [9] or [11], as was suggested by the applicant. However, even if it did, the applicant did not draw attention to any authority precluding such matters from informing the assessment under s 473DD(b)(ii). Cases such as AAQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 759 at [18(11)] and [33] (Burley J) are to the contrary.
The IAA in this case expressly found that it had not been satisfied that the information considered at [9] was “credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims”. This was informed by what the IAA considered were inconsistencies and a lack of detail regarding information from the applicant’s father. The IAA also found, for the reasons it gave, that it was not satisfied that the new information could not have been provided to the Delegate. This applied the criteria in s 473DD(b)(i) of the Act, which necessarily considered the fact that the information was not produced earlier.
The IAA was also not satisfied that the requirements of s 473DD(b) were met regarding the information assessed at [11] on account of, inter alia, its consideration that the information was inconsistent with other information before it. As the IAA found that s 473DD(b) was not met, it was unable to consider the information: AUS17 at [11]. Therefore, even if error could be demonstrated in how the IAA approached the question of s 473DD(a), materiality has not been demonstrated.
Having regard to the above, it has not been demonstrated that the IAA erred in the manner contended by the applicant under ground 3. The ground is therefore unable to succeed.
Ground 4 – s 473DC of the Act
Ground 4 contended that the IAA unreasonably failed to consider obtaining more information in order to address its concerns. The IAA’s power to do so was found in s 473DC of the Act, which was as follows:
MIGRATION ACT 1958 - SECT 473DC
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The applicant observed that the Delegate did not have the father’s information and therefore was not in a position to ask about it or otherwise consider it. The applicant submitted that the Delegate had found his claims of harassment and monitoring by the Sri Lankan authorities to be plausible. He observed that the Delegate had gone on to note that the applicant had been unable to provide detailed information regarding his father’s involvement in the LTTE, but accepted that the applicant’s father was a member of the LTTE who surrendered to the Sri Lankan Army.
The applicant submitted that there was no basis in the Delegate’s decision for the IAA’s finding (at [31]) that his evidence about his father had been exaggerated. The applicant submitted, in dealing with the information about the applicant’s father (at [9]), that the IAA made references to there being “no information”, a claim being "inconsistent", there being "no explanation for the differing explanation", and again to there being "no explanation" as reasons why the IAA did not find the material to be credible personal information. The applicant submitted that the language used by the IAA therefore indicated that there was an “information gap” hampering proper consideration of the applicant's case. In this regard, the applicant relied upon ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17).
The applicant submitted that reasonableness required the IAA to address the gap through the procedures available to it. The applicant submitted that the manner in which the IAA dismissed the new information indicated that it could well have assisted the applicant and been relevant to the decision. The applicant submitted that the reasons given by the IAA for rejecting the information could have been explored by the IAA.
The IAA’s reasoning at [9] of its decision is set out above. At [31], the IAA considered the evolution of the applicant’s claims from the Arrival Interview to the SHEV interview regarding his father and the level of adverse attention it was claimed that he received. The increased role claimed, together with what was considered to be the “vague and unconvincing” nature of the applicant’s evidence at interview, appear to be what prompted the IAA to consider that the increased role claimed at the SHEV interview had been exaggerated. It has not been demonstrated that this reasoning was closed to the IAA.
I am also not persuaded that it has been demonstrated that it was legally unreasonable for the IAA not to have sought further information. In these circumstances, and in circumstances where the IAA was not obliged to give reasons for the exercise of discretion, I am not persuaded that it has been demonstrated that this was not considered by the IAA.
I accept the Minister’s submission that this is not a case such as ABT17. In that case, the IAA was found to have acted unreasonably in not undertaking its own assessment of an applicant’s demeanour through an interview when assessing the applicant’s credibility. This was in circumstances where the IAA departed from the delegate’s favourable assessment of credibility based upon its own assessment of the manner in which evidence had been given in an audio recording. Chief Justice Kiefel, Bell J, Gageler J (as his Honour was) and Keane J reasoned (at [22]-[25]) (inter alia):
22.The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate"[39]. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23.To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24.The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate[40].
25.However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
It is not apparent that similar reliance was placed upon demeanour by the IAA in the present case. I accept that the IAA referred to what was considered to be the “vague and unconvincing” nature of his evidence at interview. However, this could have referred to the content of that evidence rather than the manner in which it was given. Further, as was considered in ABT17 at [23], “it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed”. The IAA’s assessment in this regard was consistent with the descriptions of the evidence in the Delegate’s decision (CB 32). In any event, it is ordinarily open for the IAA to reach an assessment of the applicant’s credibility without any need for it to coincide with the assessment of the Delegate: ABT17 at [23].
In the present case, the “informational gap” relied upon by the applicant concerns the IAA’s identification of difficulties and limitations in the material that the applicant had put forward. This was in circumstances where the applicant had the opportunity of putting forward additional evidence after the Delegate’s decision and appears to have put forward voluminous material by submission via email. I am not persuaded that the fact the IAA identified difficulties and limitations in the material relied upon by the applicant rendered it unreasonable for the IAA not to have sought further information. This is within the context of the statutory scheme under Part 7AA, which intentionally limited the IAA’s procedural fairness obligations.
I am also not persuaded that legal unreasonableness has been demonstrated because the evidence assessed at [9] was not before the Delegate and the Delegate considered aspects of the applicant’s claims regarding his father to be plausible. New information relied upon by an applicant will generally not have been before the relevant delegate. This does not automatically trigger an obligation on the part of the IAA to invite the applicant to elaborate upon it. Although the Delegate accepted the plausibility of some aspects of the applicant’s claims regarding his father, this does not mean that it was unreasonable for the IAA not to have sought further information. The IAA was required to conduct a de novo review through which it determined for itself whether the criteria for the visa were met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [85] (Gordon J).
It is apparent that the IAA considered the difficulties in the evidence provided were because it was not credible, and not because it required further information in order to complete its review. The fact that the IAA could have explored its concerns with the applicant, and that the applicant may have provided relevant information had this occurred, does not demonstrate that it was legally unreasonable for the IAA not to have done so.
Having regard to the above in its totality, and its context, I am not persuaded that legal unreasonableness has been demonstrated. Grounds such as legal unreasonableness have high thresholds. I am not persuaded that they are met in the present case.
Ground 4 is therefore unable to succeed.
Ground 5 – did the IAA fail to consider an integer of the applicant’s claims?
The applicant observed that his representative made a submission to the IAA to the effect that the applicant was at risk on return to Sri Lanka because of scarring. This submission was said to have been supported by country information regarding risk if the authorities discovered scarring. The applicant observed that the representative provided photos and a medical report relating to the scarring and the IAA accepted that the applicant had scarring. However, the IAA was said to have failed to have considered the risk from scarring because of an understanding that “the applicant does not claim that he fears harm resulting from any physical or mental condition” (at [28]). This was contended to have been wrong, because the representative’s submissions specifically raised the claim of risk if the authorities discovered scarring when persons were detained for “other reasons”. The applicant observed that the IAA found that returnees undergo checks on arrival.
As the Minister submitted, however, the IAA found at [10] and [13] of its decision that the claim the applicant may face increased scrutiny on account of his scars, and the country information relied upon, were unable to meet s 473DD of the Act. The applicant has not challenged those findings, let alone demonstrated that they were affected by relevant error. In these circumstances, it was accurate for the IAA to have observed at [28] that, based upon the information it was permitted to consider, the applicant had not made the claim in question. That is, if the claim did not otherwise arise on the material before the IAA.
This has not been demonstrated. The applicant has not taken me to any part of the materials (that the IAA found it was able to consider) that could support a finding that such a claim “clearly emerged” in the requisite sense: see, for example, AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ). I am not persuaded that the reference to the applicant having “injury marks” on his body (CB 122), and/or the IAA’s acceptance that the applicant had scarring was sufficient, without more, to have given rise to such a claim. This was in the absence of evidence and/or submissions (that the IAA was able to consider) suggesting that scarring would give rise to risk in the particular circumstances of the applicant.
At hearing, the applicant (briefly) suggested that the IAA had not considered in a “real way” the photographs of the scarring or the medical reports demonstrating the extent of the scarring. The IAA found that this information did not meet s 473DD of the Act (at [10]), which was not challenged in any clear way in the grounds relied upon by the applicant.
The IAA does not appear to have doubted that the applicant’s scars were as described in those documents. Noting that it accepted the fact of the applicant’s scars, the IAA did not consider that the “doctor’s letter or the photographs add[ed] anything to the information already before [it]” (at [10]).
In the above circumstances, even if it could be demonstrated that the approach taken by the IAA regarding the doctor’s letter and photographs was affected by error, it is unclear how the materiality of that error could be demonstrated. The IAA’s reasoning at [28] did not depend upon the extent of the scarring, but upon its consideration that no claim had been made that the applicant would face harm on its account (regardless of extent). This was in circumstances where the IAA had found that it was unable to consider “new information” regarding such a claim. At hearing, I observed to the applicant’s representative that, unless there was an issue with its application of s 473DD in this regard, then the IAA had been unable to consider the new information at the determinative stage of its review. This was accepted by the applicant’s representative, who expressed that he did not wish to say anything further on the issue.
Having regard to the above, I am not persuaded that relevant error has been demonstrated under ground 5.
CONCLUSION
For the reasons given above, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 January 2025
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