CVD16 v Minister for Immigration

[2019] FCCA 3759

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVD16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3759

Catchwords:

MIGRATION – Whether the Authority failed to consider the applicant’s claims – whether the Authority failed to comply with s 473EA of the Migration Act 1958 (Cth) – whether the Authority failed to provide “reasons” – new information – whether the Authority considered new information that was not before the Delegate.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 473DC(1), 473DD, 473DD(1), 473EA, 473EA(1)(b), 476(1)

Cases cited:

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
Hossain v Minister for Immigration and Border Protection (2018) ALJR 780
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Applicant: CVD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2106 of 2016

Judgment of: Judge McNab

Hearing date: 20 August 2019

Date of Last Submission: 20 August 2019

Delivered at: Melbourne

Delivered on: 20 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondents: Mr Minson

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 29 September 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2106 of 2016

CVD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 29 September 2016 and amended 23 July 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 7 September 2016. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the first respondent (‘the Minister’) refusing to grant a Temporary Protection (Class XD, Subclass 785) visa. This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’).

2. The matter was heard on 20 August 2019.

Background

1. The applicant is a Sri Lankan male of Tamil ethnicity.

2. The applicant came to Australia as an unauthorised maritime arrival on 17 August 2012.

3. On 11 January 2013, the applicant participated in an entry interview. The applicant stated that he sought protection from Sinhalese people. He claimed that due to working in Oman and Qatar, the Sri Lankan Army (‘SLA’) and the Sri Lankan police attempted to extort money from him. He further stated that the police and security or intelligence organisations prevented him moving around freely, but said he had not been detained by these groups. He stated neither he nor his family were involved in any political group or organisation. At this interview, the applicant stated that he feared for his life if returned to Sri Lanka.

4. On 4 August 2013, the applicant applied for a Protection (Class XA) visa (‘Protection visa’). On 18 August 2015, the Department of Immigration and Border Protection notified the applicant ‘as you arrived in Australia unlawfully and you were affected by one or more application bars in the Migration Act, this application was invalid and cannot be processed any further’. This letter of 18 August 2015 invited the applicant to lodge either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.

5. On 7 September 2015, the applicant sought an extension of time to apply for a Temporary Protection Visa (‘TPV’). On 10 September 2015, the Department of Immigration and Border Protection acceded to that request.

6. On 11 October 2015, the applicant applied for a TPV. The applicant provided a statutory declaration in support of this application. That statutory declaration repeated many of the claims the applicant had made in the statutory declaration in support of the Protection visa, but also provided new and expanded claims.

7. On 22 December 2015, the applicant was invited to attend an interview with the Delegate on 20 January 2016.

8. The applicant attended this interview (‘the TPV interview’). The applicant also produced a document written in the Tamil language, which the applicant advised was an extract from a human rights report published in 2016. The Delegate instructed the applicant to provide an English copy or provide details where such copy could be found online. The applicant did not do this, though the Delegate says that it attempted to locate the report that the applicant may have been referring to.

9. The applicant provided further documents in support of his claim by email on 16 January 2016. This included a translation of a complaint made by the applicant’s mother to the Sri Lankan Human Rights Commission (‘HRC’). The applicant had, at an earlier stage, provided (from his mother) a HRC card to the Delegate. Collectively, the HRC card and complaint are referred to as the HRC documents.

10. On 22 July 2016, the Delegate refused to grant a TPV.

11. On 25 July 2016, the matter was referred to the Authority.

12. On 26 July 2016, the applicant telephoned the Authority enquiring as to how long he had to submit additional documents and whether he could consult anybody to prepare his submissions. The applicant was informed he had 21 days from the date of referral (being the previous day) and that he could contact a migration agent. The applicant did not submit any further information.

13. On 7 September 2016, the Authority affirmed the Delegate’s decision to refuse to issue a TPV to the applicant.

Applicant’s claims to fear persecution

1. At [5]-[6] of the Authority’s decision record, the Authority summarised the applicant’s claims:

   5. The applicant's claims are contained in the information referred to the IAA. They can be summarised as follows:

   He is a Tamil from Eastern province.

   In 2004, two friends of his went missing. People in his village suspect the Sri Lankan authorities were responsible because the Sri Lankan authorities suspected young Tamil males of being members of the LTTE.

   He lived in Qatar from July 2004 to May 2008 and lived in Oman from February 2009 to May 2012. He went to those countries in part to get away from security problems in Sri Lanka and in part to work.

   In May 2008 he returned to Sri Lanka because his mother was ill (but has also said because he returned because he hoped things had settled down there). Unidentified armed men speaking Singhalese (whom he believes are Criminal Investigation Department ("CID") officers) often came to his home. They interrogated him and accused the applicant of being a member of the LTTE. His mother paid money to the men so that they would leave.

   He returned to Sri Lanka again in March 2012 (although he elsewhere said it was May) because his mother told him things were more secure (elsewhere he said he returned because his mother was ill, again). A few weeks after his return, the police and army came to his home regarding his household registration. He was taken to the police station, questioned for 1½ hours and released. After this event, he began sleeping each night at a relative's home.

   In June 2012, unidentified men in uniforms speaking Singhalese abducted the applicant from his home ("the abductors"). The abductors asked him about his overseas travel, beat him, threatened to kill him and threatened to accuse him of being associated to the LTTE. The abductors telephoned his mother. His mother paid a ransom to secure his release. His mother lodged complaints with the local police and the Sri Lankan Human Rights Commission ("HRC"). He believes he was targeted because people in his village told the abductors he had worked overseas.

   In July 2012, he departed Sri Lanka illegally via boat. His mother told him to leave because the Sri Lankan authorities still harm young Tamil males, such as him.

   In 2014, his mother has arranged his marriage to his fiancé, who resides in India.

   6. The applicant fears he will be harmed by Singhalese and/or the Sri Lankan authorities because:

   a. He is young, Tamil male and will be perceived to support the LTTE;

   b. People who return to Sri Lanka from foreign countries are unsafe and will be perceived to be wealthy;

   c. The abductors or the Sri Lankan authorities will harm him because they will know his mother made complaints to the police and HRC;

   d. He applied for asylum in Australia; and

   e. He departed Sri Lanka illegally

Authority’s decision

1. On 7 September 2016, the Authority affirmed the Delegate’s decision to refuse to issue a TPV.

2. The Authority had concerns about the applicant’s claims to be extorted in 2008 and 2012 as the Authority found that the applicant’s credibility was undermined as:

   a)the applicant did not make the claims to be extorted in 2012 in his Protection visa claim in 2013 (the Authority did not accept the applicant’s claim that he did not include the claim to be extorted in 2012 on the advice of his lawyer);

   b)the applicant did not mention being extorted in 2008 in his TPV interview; and

   c)there were a number of inconsistencies in the evidence given and supplied by the Applicant (including the applicant’s statutory declaration of 11 October 2015, his TPV interview, his mother’s police report and his mother’s HRC complaint), which led the Authority to conclude that the police report and HRC documents were not credible and the applicant’s reliance upon those documents further undermined his credibility.

3. For those reasons, the Authority rejected the claims that the applicant was extorted in 2008 or 2012 or that the applicant had ever been threatened by the SLA, police, intelligence officers or other unknown persons. The Authority said that the applicant fabricated ‘these claims in their entirety so as to create a profile upon which to apply for protection’.[1]

   [1] Authority’s decision record, 7 September 2016, [18].

4. The Authority found that there is only a remote (and not a real) chance that the applicant will be targeted for serious harm for the reason of being perceived as wealthy for having worked in Qatar and Oman and having lived in Australia.

5. The Authority accepted that the applicant was a Tamil, that he had been displaced as a child and was rounded up and questioned during the Sri Lankan civil war. The Authority accepted that the applicant was questioned by police in 2012 after returning from Oman in regard to his household registration. The Authority stated this appears to be routine policing, and that the SLA was not involved and that the applicant did not suffer harm while being questioned.

6. The Authority was not satisfied that the applicant’s connection to the Liberation Tigers of Tamil Eelam (‘LTTE’) was sufficient to create a profile that would bring him to the attention of the Sri Lankan authorities. This conclusion was based upon information from the Department of Foreign Affairs and Trade (‘DFAT’) and the United Nations High Commissioner for Refugees (‘UNHCR’) that says that not every Tamil is imputed with pro-LTTE political opinion. The Authority also placed weight on the applicant having returned to Sri Lanka from Qatar and Oman as evidence of him not having a genuine fear from Sri Lankan authorities.

7. The Authority, while accepting that the applicant would be returned as a failed asylum seeker, was not satisfied that the applicant faces a real chance of serious harm as his profile was not one that the country information suggested may expose him to a real chance of harm.

8. The Authority accepted that the applicant departed Sri Lanka in contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka). The Authority noted that whilst breaching the aforementioned Act could lead to a custodial sentence, information from Sri Lanka’s Attorney-General’s Department to DFAT indicates that no returnee who has left as a ‘simple passenger’ has been given a custodial sentence for breaching the Immigrants and Emigrants Act. The Authority, based on the applicant’s low profile, determined that he did not face a real chance of detention or imprisonment. The Authority, noting that the Act is a law of general application, was satisfied that ‘any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the [Migration] Act’.[2]

   [2] Authority’s decision record, 7 September 2016, [35].

9. The Authority concluded that the applicant does not meet the definition of refugee in s 5H(1) and therefore, does not meet s 36(2)(a).

10. The Authority, after making findings under the headings ‘illegal departure’, ‘discrimination’ and ‘balance of claims’, concluded that the applicant was not owed complimentary protection per s 36(2)(aa) of the Act.

Grounds of review

1. The applicant’s grounds of review, by the Amended Application filed 23 July 2019, are:

   5. The Second Respondent failed to give consideration to the claims and supporting evidence provided by the Applicant.

   Particulars

   a. The Second Respondent rejected the Applicant's claims that he was abducted and in doing so failed to give consideration to documents purported to be from the Sri Lankan Human Rights Commission (HRC) which corroborated the Applicant's claims. The Second Respondent was obliged to give consideration to the HRC documents as they were relevant to the Applicant's claims.

   5. The Second Respondent failed to comply with its obligations under s 473EA of the Migration Act 1958.

   Particulars

   a. In rejecting the Applicant's claims at para [19] of the decision, the Second Respondent failed to provide any reasons as to why the Applicants claims should be rejected. The rejection of the Applicants claims without any basis saw the Second Respondent either fail to make a lawful decision or fail to comply with its obligations under s 473EA(1)(b) to set out the reasons for its decision.

   6. The Second Respondent failed to comply with its obligations under s473DD of the Migration Act 1958.

   Particulars

   In relying on and considering information that was not before the delegate (in this instance, a DFAT Thematic Report), the Second Respondent failed to comply with s.473DD, which required the Second Respondent to only consider "new information" when "exceptional circumstances" existed to justify its consideration.

Applicant’s submissions

Ground 1 – whether the Authority failed to consider the applicant’s claims

1. The applicant says that the HRC documents were not properly considered by the Authority as they ‘were also relevant to [the applicant’s] claim that a complaint had been made to the HRC’.[3] The applicant says that the Authority ‘unjustifiably presumed that having found that the [abduction did not happen this] necessarily meant that the complaints to the HRC must also not have in fact been made’.[4]

   [3] Applicant’s submissions, filed 23 July 2019, [7].

   [4] Applicant’s submissions, filed 23 July 2019, [8].

2. The applicant says that the claim that the Sri Lankan authorities may harm the applicant because of his mother’s complaint was put squarely before the Authority and noted by the Authority at [6](c) of the Authority’s decision record.

Ground 2 – whether the Authority failed to comply with s 473EA of the Act

1. The applicant challenges the conclusion in [19] of the Authority’s decision record which stated:

   I have rejected the applicant's claims of past harm as not credible. On the basis of the work records and passport records in the review material, I accept the applicant did work in Qatar and Oman in the past. But that was now several years ago. I accept too if he returns to Sri Lanka, he will do so as someone who has not only worked in those countries, but who has also now spent a number of years in Australia. I am mindful of the information in the DFAT reports and the country information quoted by the delegate regarding extortion against people Eastern province. On the evidence before me, I consider there to be only a remote chance and therefore not a real chance the applicant will be targeted for serious harm by the Sri Lankan authorities or Singhalese, for reason of his being perceived to be wealthy because he worked in Qatar and Oman and lived in Australia, now or in the reasonably foreseeable future, if he returns to Sri Lanka.

2. The applicant says that the conclusion reached is not justified. The applicant then says that either of these two consequences must follow:

   a)first, that the Court must infer that the Authority has tried to comply with s 473EA of the Act and that the statement is an exhaustive statement of the Authority’s mental processes and that the failure to mention any reason why the claim was not accepted means the Authority did not have lawful reason for doing so and has, therefore, not acted legally; or

   b)second, that the “reasons” for the decision are so bereft that they cannot be considered compliant with the obligations of s 473EA(1)(b) and that the Court should find that the Authority has not actually “made” a decision.

Ground 3 – whether the Authority failed to comply with s 473DD of the Act

1. The applicant says that the DFAT Thematic Report about people with links to the LTTE dated 3 October 2014 (and considered at footnote 1 of [22] of the Authority’s decision record) does not appear to have been before the Delegate. The applicant submits that this means that the DFAT Thematic Report is “new information” and, for the purposes of s 473DD of the Act, the information can only be considered if there are “exceptional circumstances” to justify its consideration.

2. The applicant says the failure of the Authority to discuss the question of “exceptional circumstances” means that the Authority failed to address whether there were “exceptional circumstances” and is, therefore, in breach of a procedure required by s 473DD of the Act. It is said this is a jurisdictional error as the terms of the provision are unambiguously clear.

Respondent’s submissions

Ground 1 – whether the Authority failed to consider the applicant’s claims

1. The Minister contends that [17] of the Authority’s decision record shows that the HRC documents were considered, but that the HRC documents were just given ‘little weight’.[5]

   [5] Respondent’s submissions, filed 6 August 2019, [31].

2. The Minister says that on a ‘fair reading of the Authority’s reasons’, [17] of the Authority’s decision record is not confined to mere consideration of the applicant’s claim to have been abducted.[6] The Minister notes that this is particularly so where at [18] of the Authority’s decision record, the Authority states: ‘I reject his mother made any complaint to the police or the HRC’.

   [6] Respondent’s submissions, filed 6 August 2019, [35].

Ground 2 – whether the Authority failed to comply with s 473EA of the Act

1. The Minister submits that [19] of the Authority’s decision record contains three reasons for dismissing the applicant’s claims to face harm if returned to Sri Lanka due to a perception of him being wealthy. The first reason is that the Authority had rejected the claims of past harm as not credible. Secondly, the applicant’s time overseas (in Qatar and Oman) were ‘several years ago’. The Minister says the third reason is inferable from the Authority’s reference to the country information quoted by the Delegate regarding extortion of people in Sri Lanka and the eastern province where the applicant is from.

2. The Minister says that there is no allegation of illogicality or unreasonableness; particularly where the past is likely to be the most reliable guide to the future.

Ground 3 – whether the Authority failed to comply with s 473DD of the Act

1. The Minister accepts that the DFAT Thematic Report is ‘new information’ as defined by s 473DC(1).

2. The Minister says that the Authority’s failure to expressly state that there are “exceptional circumstances” does not mean that the Authority did not consider the issue.

1. The Minister says that the Court should not draw an inference that the issue was not considered. The Minister argues that the Authority is not obliged to give reasons as to why it is or is not satisfied of matters in s 473DD. The Minister says that both s 473EA(1)(b) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth) impose an obligation on the Authority to set out its ultimate decision; that is, not procedural or antecedent decisions made throughout the review: see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [28]-[30].

2. In the alternative, the Minister submits that even if the Authority did not consider the issue, this was not a jurisdictional error as the ‘postulated legal error’ was not material to the Authority’s decision.[7] The Minister relies on Hossain v Minister for Immigration and Border Protection (2018) ALJR 780 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ) (‘Hossain’):

   Ordinarily, a statute which impliedly requires ... [a] condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.

   …[T]he threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.

   (citations omitted, otherwise as cited from the Respondent’s submissions)

   [7] Respondent’s submissions, filed 6 August 2019, [43].

3. The Minister says that the DFAT Thematic Report was not material as it was considered alongside other supporting information that was before the Delegate (such as the DFAT country information and the UNHCR information). Further, the Minister submits that the conclusion that the DFAT Thematic Report supported was also ‘expressly based on the fact that the Applicant had voluntarily returned to Sri Lanka from Qatar and Oman, which fact the Authority found weighed against him having any genuine fear of harm’.[8]

   [8] Respondent’s submissions, filed 6 August 2019, [46].

4. The Minister says that it is ‘impossible to conclude that, if the Authority had complied with the condition in s 473DD to only consider the DFAT Thematic Report if satisfied that there were exceptional circumstances to do so, its decision could have been different’.[9]

Applicant’s submissions in Reply

[9] Respondent’s submissions, filed 6 August 2019, [46].

Ground 1 – whether the Authority failed to consider the applicant’s claims

1. The applicant reasserts that the HRC documents advanced two matters:

   a)first, as corroborating the matters that were the subject of the HRC complaint; and

   b)second, whether the ‘bare fact of a complaint having been made to the HRC [gives] rise to a risk of harm’.[10]

   [10] Applicant’s submissions in Reply, dated 8 August 2019, [3].

2. While acknowledging that the Authority rejected that the applicant’s mother made a complaint to the HRC, the applicant says this does not determine whether the HRC documents are genuine ‘insofar as they indicate that a complaint was made to the HRC’.[11]

   [11] Applicant’s submissions in Reply, dated 8 August 2019, [4].

3. The applicant says [17] of the Authority’s decision record evinces the difficulty in the Authority’s reasoning. The applicant says that because the Authority placed “little weight” on the HRC documents, that this implies there is “some” corroborative benefit. The applicant juxtaposes with what the Authority could have found: the documents having no weight and therefore having no corroborative benefit.

Ground 2 – whether the Authority failed to comply with s 473EA of the Act

1. The applicant asserts that the “reasons” put forward by the Minister are not, in truth, reasons. Rather, the “reason” of the applicant’s claims of past harm not being credible (as the Authority found) or of the applicant having worked overseas are factual statements. The applicant says, for instance, that the Authority failed in its reasons to show where ‘it determined that the risk [to the applicant] was diminished [because the applicant had been] overseas “several years ago”’.[12]

   [12] Applicant’s submissions in Reply, dated 8 August 2019, [9].

2. The applicant asserts that the third reason given by the Minister is impermissible merits review: ‘Whatever might have flowed from this information was for the [Authority] to determine, and record in its reasons – not for the Minister to plug holes in the [Authority’s] reasons from oblique references in the delegate’s decision’.[13]

   [13] Applicant’s submissions in Reply, dated 8 August 2019, [10].

Ground 3 – whether the Authority failed to comply with s 473DD of the Act

1. The applicant accepts that the Authority did not need to set out its reasons whether it was satisfied of matters in respect of s 473DD; but does note that the Authority chose to outline the information before it. The applicant says this should be considered an exhaustive statement of the information considered.

2. The applicant says the mere consideration of the information by the Authority indicates that it is material. Further, the applicant says Hossain (and the other two judgments delivered with it, including SZMTA[14]) are distinguishable: those cases dealt with ‘trifling procedural irregularities’ whereas ‘we are dealing with substantive country information upon which the [Authority] plainly relied as support for a proposition that was adverse to the applicant’s case’.[15] The applicant says that despite the decision having independent support from other country information, this ‘does not deny that the [DFAT] Thematic Report materially contributed to the critical conclusion’.[16]

   [14] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (‘SZMTA’).

   [15] Applicant’s submissions in Reply, dated 8 August 2019, [14].

   [16] Applicant’s submissions in Reply, dated 8 August 2019, [14].

3. The applicant further says that the only way the Court could determine that the information was not material would be to engage in merits review – a course that is not available to the Court.

Consideration

Ground 1 –

1. This ground asserts that the Authority failed to give consideration to the claims and supporting evidence provided by the applicant, in particular that it failed to give consideration to the HRC documents.

2. At [17] of the Authority’s decision record, the Authority stated that it placed little weight on the HRC letter or the HRC card. The Authority did so on the basis of being mindful of country information in the DFAT report regarding the prevalence of fraudulent documents in Sri Lanka and otherwise as a result of having numerous difficulties with the applicant’s evidence. The Authority concluded at [17] of the Authority’s decision record that ‘I consider the numerous difficulties with the applicant's evidence, the police report and the mother's letter outweigh any corroborative benefit of the HRC letter and the HRC card’.

3. The Authority, in the following paragraph ([18] of the Authority’s decision record) stated:

   For the above reasons, I reject the applicant was extorted in 2008 or in 2012. I reject any Singhalese, army, police, intelligence officers, CID or unknown men have ever accused or threatened to accuse applicant of being associated with the LTTE or threatened to kill the applicant. I reject any villagers told anyone the applicant had been working overseas. I reject his mother has paid any money to anyone to avoid harm to the applicant. I reject the applicant was abducted, beaten, tortured, received threatening phone calls or was followed/stalked in 2012. I reject his mother made any complaint to the police or the HRC. I consider the applicant has fabricated these claims in their entirety so as to create a profile upon which to apply for protection.

   That conclusion follows a finding in [16] of the Authority’s decision record that the mother’s letter to the HRC was not a credible document.

4. The Authority has considered both the question of whether the applicant’s mother made a complaint to the HRC and whether the HRC letter and the HRC card might have corroborated the applicant’s claims to have been abducted. A reading of [16] and [18] of the Authority’s decision record indicates that the Authority considered that the document that purported to be a complaint made by the mother to the HRC was not a genuine document and that the mother had not made any complaint to the police or the HRC.

5. Whether there is ambiguity in the reasons of the Authority when it states at [17] of the Authority’s decision record that ‘I have placed little weight on the HRC letter or the HRC card’, that ambiguity is resolved by the statement in [18] of the Authority’s decision record that the Authority rejected that the applicant’s mother made any complaint to the police or the HRC.

6. There is no failure to consider the claims made by the applicant in relation to the mother’s alleged complaints to the HRC.

Ground 2 –

1. This ground alleges that the applicant failed to provide reasons for its decision in rejecting claims of past harm. It is said that the Authority rejected the applicant’s claims without any basis and thereby failed to make a lawful decision and failed to comply with its obligations under section 473EA(1)(b) of the Act.

2. There has been no failure on the part of the Authority to provide reasons. The reasons provided were that the Authority rejected the applicant’s claims of past harm as not credible and did so in its reasons from [10] – [18] of the Authority’s decision record.

3. The other reason provided by the Authority was that the applicant’s time spent working overseas was ‘now several years ago’. To embark on a process of analysis to determine whether the Authority was wrong in finding that there would only be a remote chance and therefore not a real chance that the applicant will be targeted for serious harm by the Sri Lankan authorities because of being perceived to be wealthy due to working in Qatar and Oman ‘several years ago’ is to engage in merits review.

Ground 3 –

1. This ground asserts that the Authority’s decision is affected by jurisdictional error because the Authority considered a DFAT Thematic Report dated 3 October 2014 which was not before the Delegate. It is said that this report is “new information” and could not be considered by the Authority unless it first identified the existence of “exceptional circumstances” to justify its consideration. I do not accept the applicant’s submission that the Authority had not considered this issue.

2. The Minister accepts that the DFAT Thematic Report was not before the Delegate but contends that the substance of the finding found in [22] of the Authority’s decision record was contained in the DFAT country information report of 18 December 2015 which was before the Delegate. In [17] of the Authority’s decision record, when discussing the DFAT Thematic Report and the DFAT country information, the Authority stated that:

   […] The DFAT country and thematic reports indicate that the overall situation for Tamils in Sri Lanka has improved since the end of the civil conflict in 2009. There have been improvements in the security situation in the North and the East since the end of the conflict […]

3. The Authority’s decision record continues at [22] to reference the information contained in the DFAT country information report of 2015 (which was before the Delegate) and the UNHCR guidelines of 21 December 2012 (which was also before the Delegate).

4. In my view there is no jurisdictional error in the Authority’s decision because the Authority’s consideration of the DFAT Thematic Report was not material to the Authority’s decision.

5. A breach is material to a decision only if compliance could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ). The DFAT country information report is later in time than the DFAT Thematic Report and confirms what was stated in the earlier DFAT Thematic Report.

6. I note that both the DFAT Thematic Report and the DFAT country information report have subject headings of ‘High-Profile former LTTE members’ and ‘Low-profile former LTTE members’ and that the information contained under these headings is in almost identical terms.

7. There is no material difference in the substance of the respective reports in relation to the subject matter addressed in [22] and [23] of the Authority’s decision record. The Court was in a position to observe this as the respective reports were in evidence before the Court as an exhibit to an affidavit sworn on behalf of the Minister. Whilst the DFAT Thematic Report was new information in the sense that the document had not been considered by the Delegate, the information contained in that part of the DFAT Thematic Report referred to and relied on by the Authority was in the same terms as the DFAT country information report. Accordingly, the breach was not material as it would not have realistically resulted in a different decision: SZMTA at [45].

Conclusion

1. For the reasons above, I have concluded that the application must be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 20 December 2019