DIN19 v Minister for Immigration - [2021] FCCA 1

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIN19 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 1

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority failed to have regard to the most up to date country information or failed to have regard to a submission or whether the Secretary failed to send relevant material to the Authority considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 473DB, 473DC, 473FA, 473FB

Cases cited:

ABT17 v Minister for Immigration [2020] HCA 34

AUF18 v Minister for Immigration [2019] FCAFC 222

DIJ16 v Minister for Home Affairs [2019] FCA 1038

DJU20 v Minister for Immigration [2019] FCA 2220

DNA17 v Minister for Immigration [2019] FCAFC 146

DPI17 v Minister for Home Affairs (2019) 269 FCR 134

DUZ17 v Minister for Home Affairs [2019] FCA 1593

EMJ17 v Minister for Immigration [2018] FCA 1462

EVS17 v Minister for Immigration (2019) 163 ALD 422

Hossain v Minister for Immigration (2018) 92 ALJR 780

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v MZYTS (2013) 230 FCR 431

Minister for Immigration v Stretton (2016) 237 FCR 1

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZVFW (2018) 163 ALD 1

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Applicant:

DIN19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 346 of 2019

Judgment of:

Judge Driver

Hearing date:

17 November 2020

Delivered at:

Sydney

Delivered on:

2 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr A McBeth

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 19 August 2019 into this court, for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 346 of 2019

DIN19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 17 August 2012.[1] On 10 January 2013, he attended an Irregular Maritime Arrival Entry Interview (entry interview).[2] On 18 July 2013, the applicant lodged a protection (class XA) (subclass 886) visa application. On 13 November 2013, the visa application was found to be invalid due to the s.91K bar.[3]
[1] Court Book (CB) 90
[2] CB 1-18
[3] CB 90
By letter dated 9 September 2015, the Minister’s Department advised him that the Minster had lifted the s.46A bar and invited him to apply for a temporary protection (Subclass 785) visa or a Safe Haven Enterprise Visa (SHEV).[4]
[4] CB 19-25
The applicant lodged an application for the SHEV on 19 November 2015.[5] On 15 March 2016, he attended an interview with the Minister’s Department to discuss his SHEV application.[6] On 26 July 2016, the delegate refused to grant the applicant a SHEV.[7] The decision was referred to the Authority for review on 1 August 2016.[8] On 26 October 2016, the Authority (differently constituted) affirmed the delegate’s decision refusing to grant the applicant the SHEV.[9]
[5] CB 27-69
[6] CB 84-86; 90
[7] CB 89-113
[8] CB 114-116
[9] CB 118-130
On 4 July 2019, the Federal Court remitted the matter to the Authority.[10] Mortimer J found that the Authority had erred on the basis that it had accepted the applicant’s factual claims, which inferred that he feared arrest and detention as a result of the exercise of powers available under the Prevention of Terrorism Act (PTA), however, it did not grapple with the way powers under the PTA were currently being exercised or how those powers might be expected to be exercised in the reasonably foreseeable future.[11]
[10] CB 131-132
[11] DIJ16 v Minister for Home Affairs [2019] FCA 1038
On 5 August 2019, the Authority informed the applicant that it was reconsidering his case.[12] On 11 August 2019, the applicant sought a hearing with the Authority as he wished to provide further submissions.[13] On 12 August 2019, the Authority responded that it did not generally conduct interviews and would only consider new information in very limited circumstances. The Authority recorded that, on the information provided, it did not intend to conduct an interview in his case. Insofar as the applicant requested to provide written submissions, the Authority recorded that the Authority Practice Direction stated that any new information or submission on why the delegate’s decision was wrong was required to be given within 21 days of the date on which the case was referred by Minister’s Department. This date expired in 2016, the applicant had not indicated why he required additional time, and the Authority was not satisfied that the circumstances warranted extending time. The Authority explained that a decision could be made at any time, however if a submission was provided before the review was completed, the Authority would decide whether it was to be taken into account.[14]
[12] CB 134-135
[13] CB 137
[14] CB 136-137
On 14 August 2019, the applicant provided a submission to the Authority.[15] On 19 August 2019, the Authority affirmed the decision under review.[16]
[15] CB 138
[16] CB 141-156

The applicant’s claims

The applicant’s claims may be summarised as follows:
a)he feared harm from the government and the Sri Lankan Army (SLA) due to his Tamil ethnicity, his imputed political opinion, and as a supporter of the Liberation Tigers of Tamil Eelam (LTTE);
b)he resided in Jaffna near a military camp. He was not a member of the LTTE but helped them to build bunkers when they were in his village;
c)he was detained, beaten and questioned “many times” by the SLA both during and after the conflict. He had scars from an incident in which he was attacked by the SLA with a bayonet;
d)he moved to Colombo in 2008 and was detained by the Criminal Investigation Division (CID) and the police for three days. He was asked about his connection to the LTTE, accused of being an informer and was beaten and tortured. He was released after they verified his identity;
e)in 1995, one of his four brothers (R) was arrested and held by the army until 1997 at a military camp. R had been beaten and made to work for the army during that time. In January 2014, R was stabbed and beaten;
f)another brother (S), was detained, questioned, and assaulted by the SLA; another brother (K), had been granted protection in Australia; and one of his four brothers was an LTTE member; and
g)he would be arbitrarily arrested and detained under the PTA on return.

Authority decision

The Authority had regard to the material given to it by the Minister’s Department under s.473CB of the Migration Act.[17] The Authority recorded that the applicant provided a written submission on 13 August 2019[18] regarding the matters addressed in the delegate’s decision. No new information was included in the submission, and the Authority considered it.[19]
[17] CB 142 at [3]
[18] It was on 14 August 2019: CB 138. No error arises from this
[19] CB 142 at [4]
The Authority recorded that it had obtained updated versions of country information that was before the delegate. It was satisfied that there were exceptional circumstances to consider them. The Authority considered whether to obtain new information from the applicant in relation to the reports, and decided that it did not need to in the circumstances of this case.[20]
[20] CB 142 at [5]
The Authority accepted that:[21]
a)the applicant was never a member of the LTTE but assisted them to build bunkers during the conflict;
b)he was detained, questioned and assaulted by the SLA many times both during and after the conflict;
c)he was injured during one such assault and he had a scar from that injury;
d)in about 2008, he was detained, questioned and assaulted by the CID in Colombo;
e)S was detained, questioned and assaulted by the SLA, and R was detained for two years in a military camp and released in about 1997;
f)the applicant, S and R were harmed due to their suspected connection to the LTTE arising from their Tamil ethnicity and residence in an area previously controlled by the LTTE;
g)one of the applicant’s brothers was an LTTE member; and
h)K had been granted protection in Australia.
[21] CB 144-145 at [13]-[14], and [16]
The Authority found that the attack on R in 2014 was due to random crime, and not due to his previous detention by the SLA or because he was Tamil. It did not consider that it evidenced a real chance of harm for the applicant upon return in the reasonably foreseeable future.[22]
[22] CB 144-145 at [15]
The Authority found that many, though not all, Tamils detained under the PTA have now been released and, while the PTA remained in force, its operation had been suspended.[23]
[23] CB 145 at [18]
Relying on country information, the Authority did not consider that the chance of a person being detained or harmed on the basis of conflict-related scarring rose to a real chance.[24] The Authority recorded that information before it did not support that Tamils were being detained under the PTA. It was not satisfied that Tamils faced a real chance of harm solely on the basis of their Tamil ethnicity, nor would they be imputed with LTTE membership for being Tamil, having resided in an area that was previously controlled by the LTTE, or for having conflict related scarring.[25]
[24] CB 146 at [22]
[25] CB 146-147 at [23]
The Authority was not satisfied that the applicant’s brother who was an LTTE member was high ranking. It recorded that R and S were both released from their respective periods of detention (R was released over 20 years ago); they continued to reside in Sri Lanka, and the applicant’s evidence did not disclose that they or their families had been subjected to further adverse attention, monitoring or harm from the SLA or the Sri Lankan authorities. This showed that R and S were not of any ongoing attention to the SLA or the Sri Lankan authorities for any reason.[26]
[26] CB 147 at [24]
The Authority recorded that the applicant was released by the SLA and CID on all of the occasions that he was detained, which indicated that he was not of interest. He was last detained by the CID in 2008, four years prior to his departure, and even taking into account his evidence that he moved around to avoid detection, the Authority considered that had the CID genuinely been interested in him, they would have been able to find him during that time. Furthermore, the applicant did not claim that the CID or anyone had been to visit his family, who still lived in Jaffna, to enquire about him since his departure, nor had they faced any adverse attention. This indicated that he was not of any ongoing interest to the SLA, the CID or anyone else for any reason, and that he would not be of adverse interest on return.[27]
[27] CB 147 at [25]
The Authority was not satisfied that the applicant’s activity assisting the LTTE to build bunkers gave him a profile such that he would face any harm or monitoring on return. Noting that the PTA had been suspended, and having regard to the applicant’s profile, the Authority was not satisfied that he faced a real chance of being arbitrarily arrested and detained under the provisions of that Act for any reason on return to Sri Lanka in the reasonably foreseeable future.[28]
[28] CB 147-148 at [26]
The Authority was not satisfied that the applicant faced a real chance of harm from the SLA, the CID, the Sri Lankan government or anyone else on return to Sri Lanka now or in the reasonably foreseeable future due to: his Tamil ethnicity, his scarring; his past activities or that of his family, his brother’s protection in Australia, any actual or imputed political opinion, or any actual or suspected support or membership of the LTTE.[29]
[29] CB 148 at [27]
The Authority considered country information concerning the applicant’s chance of harm as a failed asylum seeker that departed Sri Lanka illegally under the Immigrants and Emigrants Act (Immigrants and Emigrants Act).[30] It considered the applicant’s likely process of return to Sri Lanka in detail, and was not satisfied he faced a real chance of harm on this basis.[31] In any event, the Authority also found that all persons who departed Sri Lanka illegally were subject to the terms of the Immigrants and Emigrants Act on return, and the law was therefore not discriminatory.[32]
[30] CB 148-149 at [28]-[32]
[31] CB 149 at [32]
[32] CB 149 at [33]
Relying on country information, the Authority accepted that the applicant may be subject to some monitoring, but it would not amount to serious harm. The Authority was not satisfied the applicant faced a real chance of being arbitrarily arrested and detained under the provisions of the PTA for any reason on return to Sri Lanka in the reasonably foreseeable future. It also did not consider he would face social stigmatisation to such a level that would constitute serious harm.[33] The applicant did not meet s.36(2)(a) of the Migration Act.[34]
[33] CB 150 at [35]
[34] CB 150 at [38]
The Authority then considered the complementary protection criterion and found that the applicant would not face a real risk of significant harm upon return. The Authority was not satisfied that he faced a real risk of significant harm in the returnee processing phase;[35] due to any brief time he may spend in detention;[36] due to his illegal departure;[37] due to any monitoring;[38] due to the provisions of the PTA;[39] due to social stigmatisation;[40] or due to being a failed Tamil asylum seeker.[41] The applicant did not meet s.36(2)(aa) of the Migration Act.[42]
[35] CB 151 at [42]
[36] CB 151 at [43]
[37] CB 151 at [44]
[38] CB 151-152 at [45]
[39] CB 151-152 at [45]
[40] CB 151-152 at [45]
[41] CB 152 at [46]
[42] CB 152 at [47]
As noted above, the Authority affirmed the decision under review.[43]
[43] CB 152
Relevantly to the present application, the grounds of judicial review argued by the applicant in the previous proceeding were:
a)that the Authority had not examined the most recent country information about the situation in Sri Lanka in making its decision on the review; and
b)that the Authority had not examined, and had made no determination about, whether the appellant might face arrest and detention on his return to Sri Lanka under the PTA, as he had been detained in the past under this Act prior to leaving Sri Lanka.[44]
[44] DIJ16 at [16]
In allowing the appeal under the second of those grounds, Mortimer J found that the applicant had: [45]
fairly raised the claim that the [applicant] considered he would continue to face arbitrary arrest and detention, and mistreatment, from the Sri Lankan authorities on return to Sri Lanka. The country information made it clear that the powers under the Prevention of Terrorism Act were what had been, and what continued to be, exercised to effect such arrests and detentions. While the authors of the 2015 DFAT Report expressed an opinion that this kind of conduct was decreasing, there was in fact a lot of detail given in the DFAT report about continued risks, and who might face them.
[45] DIJ16 at [61]
However, Mortimer J found that the Authority, in making “highly generalised findings that the [applicant] would have no profile of interest to the authorities on return”, failed to engage actively with the applicant’s fear, in his specific circumstances, of “future exercises of power under the Prevention of Terrorism Act and future arrest, detention and mistreatment.”[46]
[46] DIJ16 at [63]-[64]

The current proceedings

These proceedings began with a show cause application filed on 3 September 2019. On 25 May 2020, I dispensed with a show cause hearing which had been listed on 15 June 2020 and gave the applicant the opportunity to file and serve additional material. The applicant filed an amended application on 21 October 2020. The grounds in that application as amended are:
1. The Immigration Assessment Authority (IAA) made a jurisdictional error in failing to obtain and rely on the most recent information.
Particulars
a. The IAA relied on country information from DFAT dated 23 May 2018 – 15 months old – for the proposition that the Prevention of Terrorism Act (Sri Lanka) had been suspended.
b. The suspension of the Prevention of Terrorism Act was lifted in April 2019, 4 months before the IAA’s decision.
c. The finding that the Prevention of Terrorism Act was suspended was critical to the IAA’s conclusion that the applicant did not face a real chance of serious harm resulting from his detention and subsequent mistreatment under the Prevention of Terrorism Act.
d. The IAA further relied on outdated country information for the proposition that the situation in Sri Lanka had improved, including that the current president had been elected on a platform of reconciliation and reform.
e. The IAA failed to note that the former President Rajapaksa, whose previous regime had been marked by human rights abuses, war crimes against Tamils and arrest of critics of the government, had been installed as Prime Minister in October 2018, 10 months before the IAA’s decision.
f. The finding relating to the change in government (replacing former President Rajapaksa) was critical to the IAA’s conclusion that the applicant did not face a real chance of serious harm on return to Sri Lanka.
g. The failure of the IAA to obtain more recent information under its power in s 473DC of the Migration Act was unreasonable in the circumstances.
2. The IAA failed to consider and respond to a substantive submission made by the applicant, namely the submission that the Prevention of Terrorism Act was “yet operative in Sri Lanka”.
3. The Secretary of the Department failed to take reasonable steps to locate potentially relevant documents in the Department’s possession or control for the purpose of providing those documents to the IAA, in breach of the Secretary’s obligation under s 473CB of the Migration Act, causing the review by the IAA to miscarry, or alternatively, the failure of the IAA to request those documents from the Secretary was unreasonable.
Particulars
a. A critical part of the applicant’s claims for protection was that his brother had previously been granted a protection visa.
b. The Departmental file for the applicant’s brother was in the Secretary’s possession or control.
c. The Secretary failed to provide the file for the applicant’s brother or any part of it to the IAA.
d. The inability of the IAA to ascertain the factual basis for the grant of the protection visa to the applicant’s brother was material to its decision that the applicant did not face a real chance of serious harm.
4. The IAA erred in finding that the applicant’s evidence did not disclose that the applicant’s remaining family in Sri Lanka had been “subjected to further adverse attention” from the Sri Lankan army or Sri Lankan authorities, or alternatively, the IAA failed to give proper consideration to the claim that the army were still arresting people in the applicant’s home village that had previously helped the LTTE, or alternatively, failed to give proper consideration to the applicant’s claims in assessing his “profile”.
Particulars
a. The applicant claimed in his statutory declaration that his family had told him that since his departure, the army were still in his home village, kidnapping and questioning Tamils and arresting people who had helped the LTTE in the past and that the people in the village could not leave their homes at night for fear of being taken by the army.
b. The IAA made a finding of fact that could not be sustained by the evidence in finding that there had been no claim that the applicant’s family had not been subjected to further adverse attention since the applicant’s departure.
c. Further and alternatively, the IAA failed to give proper consideration to the claim that the army were still arresting people in the applicant’s home village that had previously helped the LTTE.
d. Further and alternatively, the IAA’s consideration of the applicant’s “profile” failed to engage properly with his specific evidence, accepted elsewhere in the IAA decision.

In addition to the court book filed on 9 October 2019, I received three affidavits filed on 21 October 2020, to which are annexed the Department of Foreign Affairs and Trade (DFAT) country information reports for Sri Lanka published on 18 December 2015 (2015 DFAT Report), 23 May 2018 (2018 DFAT Report) and 4 November 2019 (2019 DFAT Report).

Consideration

Applicant’s contentions

Ground 1: whether the Authority made a jurisdictional error in failing to obtain and rely on the most recent information

The Full Federal Court held in Minister for Immigration v MZYTS[47] that reliance on the most up-to-date information in the context of decision-making about a protection visa application “is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction.”
[47] (2013) 230 FCR 431 at [73]
It follows that a decision made in reliance of information that is no longer current will potentially constitute jurisdictional error.
In the context of the scheme of fast-track review, the Authority is specifically equipped with the ability to get new information, being information that was not before the delegate but may be relevant to the review, by s.473DC.
In the present case, as Mortimer J explained in DIJ16, the applicant’s claim to fear harm was in large part based on the potential for the PTA to be used to detain arbitrarily and mistreat or torture him, as it had been in the past.
In his submission to the Authority dated 14 August 2019, the applicant emphasised the importance of the PTA to his claims. In particular, he emphasised that the PTA was operative in Sri Lanka as at the date of his submission. He stated:[48]
The Prevention of Terrorism Act [is] yet operative in Sri Lanka, and this gives wide powers to the Sri Lankan armed forces to arrest and detain young Sri Lankan Tamils like me.
[48] applicant’s submission to the Authority, 14 August 2019, CB 138 at [4]
The Authority had before it the 2015 DFAT Report and a 2014 United Kingdom Home Office report, both of which had been considered by the delegate and included in the review material.
Given the passage of time between the delegate’s decision in July 2016 and the consideration of the Authority decision in August 2019, the Authority, quite properly, exercised its power under s.473DC to obtain a newer DFAT report, published on 23 May 2018.[49] It also obtained a 2017 United Kingdom Home Office report.
[49] Authority decision record, CB 142 at [5]
By the time of the Authority’s decision on 19 August 2019, the information in the 2018 DFAT Report was at least one year and three months old.
The Authority’s decision that the applicant did not face a real chance of serious harm on return to Sri Lanka, despite having accepted his factual claims of past harm inflicted by the SLA and CID on the applicant and members of his family, relied in significant part on two statements about the situation prevailing in Sri Lanka as at the time of the 2018 DFAT Report, namely:
a)the risk of harm to Tamils and persons in the applicant’s position was reduced by the change in government from the former Rajapaksa Government to the Sirisena Government in 2015; and
b)the PTA (pursuant to which the applicant and his brothers had previously been detained and assaulted, which the Authority accepted) had been and remained suspended.
Given the emphasis on the PTA in the applicant’s written submission, and given the material reliance placed on both the change of government and the suspension of the PTA in the Authority’s decision, the Authority would have been (or certainly should have been) aware of the importance in ensuring the accuracy and currency of those matters in its review.
In fact, by the time of the Authority’s decision, former President Rajapaksa had become Prime Minister, having been appointed on 26 October 2018, ten months before the Authority decision.[50]
[50] 2019 DFAT Report at [2.37]-[2.39].
Furthermore, by the time of the Authority’s decision, the suspension of the PTA referred to in the 2018 DFAT Report had come to an end, with the government resuming the use of the PTA to detain individuals from April 2019.[51]
[51] 2019 DFAT Report at [3.17].
Both matters would have been easily ascertainable from a simple web search or other basic enquiry.
The power of the Authority to get new information is conferred on the condition that it be exercised reasonably. The failure to exercise that power where the circumstances of the review require new information to be obtained for the proper discharge of the Authority’s review function will constitute jurisdictional error.[52]
[52] ABT17 v Minister for Immigration [2020] HCA 34 at [3]
The applicant submits that, in the present case, given:
a)the centrality assumed by the facts of the identity of the Sri Lankan government and the operational status of the PTA in the Authority’s decision;
b)the emphasis placed by the applicant on the current operation of the PTA in his submission to the Authority;
c)the obvious nature of the importance of ensuring the currency of these two facts;
d)the fact that even the newest information obtained by the Authority was at least 15 months old; and
e)the ease with which the Authority could have checked on the currency of the information,
the failure of the Authority to obtain up-to-date information on those two issues was unreasonable.
Furthermore, the applicant contends that the reliance of the Authority on information that was out of date by the time it made its decision meant that its satisfaction that the applicant did not meet the protection visa criteria was not lawfully reached, for the reasons explained by the Full Federal Court in MZYTS.

Ground 2: failure to consider the applicant’s submission

Under the Practice Direction issued by the Authority under s.473FB, an applicant is invited to provide concise written submissions addressing “why the delegate’s decision was wrong” and any claims that were overlooked by the delegate.
In that context, the applicant provided concise submissions to the Authority on 14 August 2019. One submission included in that document was to the effect that the PTA was “yet operative”.[53]
[53] applicant’s submission to Authority, 14 August 2019, CB 138 at [3]
The applicant submits that, understood in its proper context, namely as the response of an unrepresented applicant when told to explain concisely “why the delegate’s decision was wrong”, the submission was that, contrary to the delegate’s finding at [75] that emergency restrictions under the PTA were being lifted and individuals detained under the PTA were being released,[54] the PTA was in fact “yet operative” and being enforced as at the date of the applicant’s submissions on 14 August 2019. Consequently, in the applicant’s submission, he was at real risk of arrest and arbitrary detention under the PTA if he returned to Sri Lanka in the future.
[54] delegate’s decision record, 29 July 2016, CB 105 at [75]
The Full Federal Court in DNA17 v Minister for Immigration[55] held that the failure of the Authority to consider and respond to a substantial argument in a written submission to the Authority constituted jurisdictional error.
[55] [2019] FCAFC 146 at [46]-[48]
The applicant contends that, while the Authority in this case asserted at [3] that it had considered the applicant’s submission of 14 August 2019, it did not in fact engage with the applicant’s submission that the PTA was “yet operative”.[56]
[56] CB 138
Accordingly, the Authority is said to have fallen into jurisdictional error for failing to consider the applicant’s submission.

Ground 3: failure to provide or obtain documents relating to the applicant’s brother’s protection claims

One of very few matters emphasised by the applicant in his submission to the Authority dated 14 August 2019 was that his brother had sought asylum in Australia and had been recognised as a refugee under the Migration Act.[57]
[57] applicant’s submission to Authority, 14 August 2019, CB 138 at [6]
The applicant submits that, in context, the applicant’s submission should be understood as submitting that his brother’s claims, the details of which would be known by the Minister’s Department, were relevant to the assessment of his own claims. The Authority recorded that the applicant had told the delegate in 2016 that he did not know the basis on which his brother had been granted protection and was unable to provide further details. The Authority accepted that the brother had been granted protection.[58]
[58] Authority decision record, CB 145 at [16]
The “profile” of the applicant’s brother K (being the brother who had been granted protection) was purportedly considered by the Authority at [26],[59] making it an issue that was relevant in the review.

Duty of the Secretary to provide review material

[59] CB 147-148

Under s.473CB, the Secretary of the Minister’s Department has a duty to provide certain information to the Authority as part of the review material, including the delegate’s decision record and any information that had been provided by the applicant, as well as “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.
The duty in s.473CB “imposes an obligation on the Secretary to take reasonable steps to locate potentially relevant documents in the Department’s possession or control.”[60]
[60] AUF18 v Minister for Immigration [2019] FCAFC 222 at [6]
Where the non-compliance with that obligation by the Secretary was material, in the sense that it deprived the applicant of a possibility of a successful outcome on the review by the Authority, the result will be jurisdictional error.
The applicant submits that, in the present case, the brother’s visa file was undoubtedly in the possession or control of the Secretary. It was also ultimately relevant to the review as demonstrated by the Authority’s decision record.
It is not clear whether the brother’s immigration file (or any part of it) was before the delegate at the time he made his decision. If it was, there has, in the applicant’s submission, been an undeniable breach of s.473CB.
The applicant further contends that, if the brother’s file was not before the delegate, it fell to the Secretary in the exercise of his or her duty of considering what relevant documents to include in the review material to take reasonable steps to search for relevant documents in the Minister’s Department’s possession or control. As such a search would undoubtedly reveal the brother’s file, the Secretary is said to have been obliged to consider whether the brother’s file was relevant and should be provided to the Authority.
The applicant contends that, as the brother’s file was not provided to the Authority, there has been an evident breach of the s.473CB duty by the Secretary.
The absence of the brother’s file or the details of his claims in the Authority’s review are said to have resulted in the Authority purporting to consider the brother’s “profile”, as part of the consideration of the applicant’s claims, on the basis of incomplete information. The Authority’s review therefore is said to have miscarried.

Unreasonable failure to obtain the brother’s file

In the alternative, regardless of whether the non-provision of the brother’s file (or part of it) constituted a breach of the Secretary’s duty, the applicant submits that there can be no doubt that the relevance of the brother’s claims to the review would have (or should have) been apparent to the Authority in conducting the review.
The Authority had the power under s.473DC to obtain that information from the Secretary.
The failure to exercise that power, being the obvious remedy to the gap in the information before the Authority, is said to have been unreasonable in the circumstances.[61]
[61] ABT17 at [16]
On either formulation, the fact that the Authority proceeded on its review, including purporting to consider the brother K’s “profile”, in the absence of any information about the brother’s claims for protection, is said to have been materially affected the review and thereby constituted jurisdictional error.

Ground 4: failure to give proper consideration to the applicant’s claims

In his statutory declaration of 16 November 2015, the applicant stated that when he last spoke to his family, two months before making the declaration, they told him that “the Army is still in my village and are still kidnapping and questioning Tamils. Even now in the evenings, Tamils cannot leave their homes for fear of being taken by the Army.” [62]
[62] applicant’s statutory declaration, 16 November 2015, CB 77 at [48]
The references to those events “still” occurring and the sense of persecution being “still the same” relate to the preceding narrative in the statutory declaration, in which the applicant explains in detail the repeated, apparently arbitrary abductions of the applicant and his brothers by the SLA.
Despite that evidence, which was not doubted or criticised by the Authority, the Authority asserted at [25] that the applicant had not “indicated that his parents or other siblings have faced adverse attention for any reason.” On that basis, the Authority found that the applicant was not of any ongoing interest to the Army or CID.
The applicant submits that, fairly read, the applicant’s evidence at [48] and [50] of his statutory declaration[63] was that the SLA was actively seeking out and detaining and “kidnapping” people in the applicant’s village who had assisted the LTTE in the past, and that the Tamil members of the village, including his family members, were confined to their homes out of fear of being so targeted. On any view, that is said to amount to at least “adverse attention”.
[63] CB 77
Having “misunderstood or disregarded” the applicant’s evidence on that point, the Authority went on to find at [26][64] that it was satisfied that the applicant would not be of any future interest for any suspected LTTE membership or support.
[64] CB 147-148
The applicant contends that, in that respect, the Authority has based its decision on a claim that it misunderstood or misconstrued. In doing so, it is said to have fallen into jurisdictional error.[65]
[65] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [63]
The Authority further found at [26], on its analysis of the “profile” it had ascribed to the applicant at [24], that he did not have “a profile of interest to the Sri Lankan authorities as set out in the independent information above.”
In relation to a similar conclusion by the previously constituted Authority, Mortimer J in DIJ16 held: [66]
There is a disconnect, or disconformity between, on the one hand, the Authority’s complete acceptance of the appellant’s narrative of his past treatment (including what the Authority described as “torture” of him by the Sri Lankan authorities) and his past involvement with the LTTE, and on the other, its highly generalised findings that the appellant would have no profile of interest to the authorities on return.
[66] DIJ16 at [63]
The same is said to be true in the present case. The reference to the profile “set out above” is a reference to [20] of the decision record, adopting a report from the UK Home Office in 2017 that protection was no longer necessary for all ethnic Tamils, but was only warranted for individuals who fit certain profiles.[67]
[67] CB 146
The applicant contends that, quite apart from the fact that the Authority’s view of the profile that would warrant protection was skewed by its erroneous belief that the PTA remained suspended (as explained in Ground 1), the consideration of the “profile” described at [24] occurred in isolation from the factual claims of the applicant that he had been mistreated in the past for his actual support of the LTTE, he feared that he would be mistreated again, and his entire village, including his family, were at the time of his statutory declaration being subjected to the adverse attention of the SLA.
In doing so, the Authority is said to have failed to embark on the active intellectual engagement with the applicant’s evidence at the point of considering his “profile” that its task required. While the Authority’s findings at other points of the decision record indicates that the applicant’s evidence was not only considered but accepted, its default to the analysis of a “profile” dictated by (outdated) country information in the dispositive part of the decision without incorporating the factual findings as to the applicant’s past experiences is indicative of jurisdictional error.

Minister’s contentions

Ground 1

The Minister submits, first, that the Authority at [5][68] did exercise its discretionary power under s.473DC to get new information in the form of the 2018 DFAT Report, and an updated United Kingdom Home Office Report from 2017. There is no suggestion by the applicant that more recent reports from either of these credible sources was available to the Authority at the time of, or at any time prior to, the Authority’s decision. DFAT published the 2019 DFAT Report more than two months after the Authority made its decision in this case.
[68] CB 142
Secondly, the Minister contends that there was no information before the Authority, or submission advanced by the applicant, to suggest that the political situation in Sri Lanka, or the status of the PTA, were matters that had, or might imminently, change. The information in the 2018 DFAT report indicated that whilst the PTA was suspended, it was still legally in force. This information as to the status of the PTA was not inconsistent with the applicant’s claim (in his submissions to the Authority) that the PTA was “yet operative”.[69] In other words, there is said to have been no information before the Authority that would have “triggered” it to make further enquiries about the currency of the information it possessed.[70]
[69] CB 138
[70] DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [51]
The Minister submits, in any event, in relation to the cessation of the suspension of the PTA, which the 2019 DFAT Report indicates occurred in “April 2019”, it is not clear on the evidence before the Court precisely when the suspension was lifted, or more to the point, when information about the lifting of the suspension was publicly available. The Authority made its decision on 19 August 2019. This could well have been prior to the lifting of the suspension. Further, the 2019 DFAT Report states at [3.17]-[3.18] that despite its “effective” suspension, the PTA was still “used sporadically between 2016 and April 2019”. The relevance in these proceedings of the content of the 2019 DFAT Report is strictly limited, as it was not information that was before the Authority, and had not been published at that time. However, even for the limited purpose of proving what other information might have been available to the Authority at the time of, or in the time leading up to its decision, the evidence before the Court is said not to establish that there was available to the Authority any information that might have had a material bearing on its conclusions.
Secondly, addressing the factual proposition advanced by the applicant, that there was a material change of government in Sri Lanka, that proposition is said not to have been made out on the evidence. The 2019 DFAT Report, at [2.38]-[2.39] explains how the appointment as Prime Minister of former President Rajapaksa by President Sirisena was short-lived and led to a constitutional crisis, resulting in the re-establishment of Prime Minister Wickremesinghe.
For these reasons, the first ground is said not to identify error by the Authority.

Ground 2

The Minister submits that the Authority took the applicant’s submission about the PTA into account. At [7][71] it recognised that one of the applicant’s claims to fear harm was that he would be arbitrarily arrested and detained under the PTA on return. The Authority then made express reference to updated country information concerning the status and effect of the PTA, and in particular its effect on the Tamil population at [18].[72] The Authority, by reference to the 2018 DFAT Report, found that, “Many, though not all, Tamils detained under the PTA have now been released and, while the PTA remains in force, its operation has been suspended”.[73] In other words, the county information cited by the Authority was not inconsistent with the applicant’s claims, although the applicant appeared to suggest that the risk of his being detained under the PTA was higher than the country information suggested.
[71] CB 143
[72] CB 145
[73] CB 145

It was a matter for the Authority to assess the risk to the applicant, including by reference to credible country information. The Minister submits that it cannot be said, as the applicant contends, that the Authority failed to consider the applicant’s claim. It assessed the applicant’s risk at [23][74] by reference to the PTA, and concluded that the information “does not support Tamils in general are being detained under that Act”. The Authority otherwise engaged in a detailed analysis of the country information that indicated that Tamils at greater risk in Sri Lanka were those who had, or might be taken to have, certain profiles linking them to the LTTE. The Authority was not satisfied at [26][75] that the applicant had such a profile. The Minister submits that no error is made out.
[74] CB 146-147
[75] CB 147-148

Ground 3

In relation to the Secretary’s duty under s.473CB, the Minister submits that the applicant has not established that there was any breach of the provision. The Secretary is not under a duty, in any particular fast-track review, to scour Departmental records in search of documents from the files of other visa applicants that might be relevant to a review applicant’s case. As Bromwich stated in DJU20 v Minister for Immigration[76] at [19]:
Section 473CB(1)(c) cannot possibly be interpreted in a way that requires the Secretary to consider all the Departmental material in his or her possession and control, not least because of the sheer size and ambit of the Department’s operations and responsibilities in administering Australia’s migration laws
[76] [2019] FCA 2220
The Minister contends, in any event, that even if the Secretary did breach s.473CB (which he does not concede), that does not of itself point to jurisdictional error. In EMJ17 v Minister for Immigration,[77] Thawley J opined, at [41(5)] that:
A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA.
[77] [2018] FCA 1462
In EVS17 v Minister for Immigration[78] the Full Federal Court stated that a breach by the Secretary of s.473CB(1) will result in jurisdictional error if the breach is material, by reference to the High Court’s judgment in Hossain v Minister for Immigration.[79]
[78] (2019) 163 ALD 422
[79] (2018) 92 ALJR 780
There is no evidence before the Court as to what the applicant’s brother’s protection claims were, or on what basis he was granted protection. The applicant bears the onus of establishing jurisdictional error.[80] In the circumstances, the Minister submits that the Court cannot be satisfied that any failure by the Secretary to consider providing the Authority with the Minister’s Department’s file for the applicant’s brother’s protection visa application might possibly have resulted in a different conclusion.
[80] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67]
To that end, it must be noted that the Authority recognised at [16][81] that the applicant’s brother, K, had been granted a protection visa, and it took this into account. According to the applicant, his brother K came to Australia “sometime around 2009-2010”.[82] On the assumption K was granted a protection visa in around 2010, the Minister submits that the claims that K might have presented in connection with the risk situation for Tamils as they existed in Sri Lanka at that time cannot have had any bearing on the Authority’s task of determining whether the applicant was, or would in the reasonably foreseeable future be, at risk of harm.
[81] CB 145
[82] CB 72 at [14]
In relation to the applicant’s argument that the Authority ought to have exercised its power under s.473DC to get new information, the Minister contends that it must be accepted that there is no positive duty on the Authority to get new information. The starting point for considering whether a repository of power has failed unreasonably to exercise a particular statutory power, regard must be had to the statutory scheme.[83] The Authority, under Part 7AA, is obliged to review a fast track reviewable decision by considering the review material provided to it under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.[84] It also required to pursue the objective of providing a mechanism of “limited review” that is “efficient, quick, free of bias and consistent with Division 3”.[85]
[83] Minister for Immigration v Stretton (2016) 237 FCR 1, [11] (Allsop CJ, with whom Wigney J agreed at [90]).
[84] section 473DB(1)
[85] section 473FA
Having regard to the Full Federal Court and High Court cases that have considered s.473DC in recent years, it may be unreasonable for the Authority not to consider exercising its power to get new information when the Authority knew that it did not have, but that the review applicant was likely to have, information on circumstances that might have borne on a factual issue that was relevant to the Authority’s review, but had not been the subject of any consideration by the delegate.[86] It may also be unreasonable for the Authority not to exercise its discretion to conduct an interview with a review applicant where issues of credit based on demeanour arise.[87] In more general terms, the question of whether a non-exercise of statutory power is legally unreasonable is a fact-specific enquiry. The standard however is “necessarily stringent”.[88]
[86] Minister for Immigration v CRY16 (2017) 253 FCR 475, [82]
[87] DPI17 v Minister for Home Affairs (2019) 269 FCR 134; ABT17
[88] Minister for Immigration v SZVFW (2018) 163 ALD 1 at [11] (Kiefel CJ)
In the present case, the Minister submits that it was not unreasonable for the Authority not consider obtaining information from the Minister’s Department about the applicant’s brother’s protection claims. As submitted above, the applicant’s brother appears to have obtained a visa about 10 years ago, and at time when the risk of harm for Tamils in Sri Lanka was significantly different (and greater) than the risk today. The applicant stresses in this mater the importance of the Authority having regard to up-to-date material in making its decision on the applicant’s review. The Minister submits that it is difficult to comprehend how anything in connection with the applicant’s brother’s claims can have been of material significance to the present case. This is said to be particularly so considering that the Authority generally accepted the applicant’s claims as to his past, and his prior mistreatment by the authorities. There is said to have been, in the relevant sense, no “gap” in the information that the Authority needed to consider in order to conduct the review.[89]
[89] cf, ABT17 at [16]
The Minister contends that the ground fails to identify jurisdictional error.

Ground 4

The Authority at [25][90] placed weight on the fact that the applicant, despite having been questioned by the SLA, was released on each occasion he was detained. It noted he had not been taken in for questioning since 2008. The Authority reasoned that despite his moving around, had the CID genuinely been interested in him, it would have been able to locate him. It found that the applicant had not indicated that authorities had visited his parents or family to enquire about him since he left, and neither had he indicated that his parents or siblings had faced adverse attention for any reason. These findings were not in conflict with the applicant’s claims set out at [48]-[50][91] of his statutory declaration. The applicant referred to a general risk for Tamils in his village, but did not claim that his family was targeted in particular, or that they had suffered any adverse attention. Even if the Authority is taken to have accepted that the SLA was “still” in the applicant’s village, the Authority did not find that the country information indicated that Tamils were no longer questioned or detained by authorities. To the contrary the Authority found that some Tamils who had a particular profile were still of interest to the authorities. The Authority concluded at [23][92] that the country information did not support a conclusion that Tamils faced a real chance of harm in Sri Lanka solely on the basis of their ethnicity, or that Tamils residing in an area previously controlled by the LTTE, or having related scarring, would result in the imputation of LTTE membership or support. The applicant in his claims did not specify who in particular in his village was being taken in for questioning.
[90] CB 147
[91] CB 77
[92] CB 146-147
The applicant further submits that the Authority’s findings concerning the risk of harm to the applicant by reference to his profile was divorced from his personal circumstances and history, and the ongoing risk to his family. This is not so. The Authority expressly took into account at [24]-[25][93] the applicant’s individual history, and past activities in assisting the LTTE, in assessing whether he came within a profile that the country information suggested would place him at risk of harm. In relation to the asserted risk to the family, as submitted above, properly read the applicant did not claim that his family had actually been subjected to any adverse attention by the authorities, even if it be accepted that some Tamils in the village were still being taken in for questioning by authorities.
[93] CB 142

Resolution

The applicant contends in Ground 1 that the Authority fell into jurisdictional error in failing to obtain and rely on the most recent information. In particular, the applicant submits that information about a change in government in Sri Lanka in 2018 and the cessation of the suspension of the PTA were matters that were easily ascertainable from a web search or other basic enquiry. The Minister contends that the argument cannot be accepted.
In the second ground the applicant contends that the Authority failed to consider his submission that the PTA was “yet operative”.[94] It is unclear from the submission precisely what the applicant meant by saying that the PTA was “yet operative”, however the applicant also submitted that “this gives wide powers to the Sri Lankan armed forces to arrest and detain young Sri Lankan Tamils like me”.
[94] CB 138
In the third ground the applicant asserts error in the Authority’s failure to provide or obtain documents relating to the applicant’s brother’s protection visa application. The applicant puts the argument two ways: either as a breach by the Secretary under s.473CB to provide the Authority with material in his possession or control that is considered by the Secretary to be relevant to the review; alternatively, as a failure by the Authority under s.473CB itself to get information about the brother’s protection claims.
In the fourth ground the applicant contends that the Authority failed to give proper consideration to his claim that in about September 2015 the SLA was still in his village and were still kidnapping and questioning Tamils, and that Tamils could not leave their homes for fear of being taken by the SLA. The applicant refers in particular to [48] and [50] of his statutory declaration dated 16 November 2015[95] and to the Authority’s reasons at [25]-[26].[96]
[95] CB 77
[96] CB 147-148
The first ground takes issue with the Authority decision at [26][97] where it stated:
In addition to the above, I am not satisfied that the applicant's activity assisting the LTTE to build bunkers places him within the category of either high or low profile former LTTE member such that he would face any harm or monitoring on return. I have found I am not satisfied that his brother was a high ranking member of the LTTE and am not satisfied R or S are of ongoing interest to the authorities, such that the applicant faces harm or monitoring on return for that reason. Nor having regard to the independent information and the profile of he and his family, including his brother, K, am I satisfied that he will be of any future interest for any suspected LTTE membership or support, or that he otherwise has, or will have on return to Sri Lanka in the foreseeable future, a profile of those currently of interest to the Sri Lankan authorities as set out in the independent information above. The evidence above indicates that the PTA has been suspended. Noting this, and having regard to his profile, I am not satisfied that he faces a real chance of being arbitrarily arrested and detained under the provisions of that Act for any reason on return to Sri Lanka in the reasonably foreseeable future. Further, on the independent information, noting he has family who continue to reside in Sri Lanka and his employment history in Sri Lanka, I am also not satisfied that he will be unable to find accommodation and employment on return to Sri Lanka, or that he otherwise faces a real chance of discrimination or harm for any reason associated with his Tamil ethnicity, his residence in the north, or his own past activities in Sri Lanka or that of his brothers.
[97] CB 147-148
The statement by the Authority that the PTA had been suspended is incompatible with the finding by Mortimer J in DIJ16 at [61]. The Federal Court was, of course dealing with the decision of the previous Authority, not this one. Where, however, the Authority on remittal falls into the same error as that identified on judicial review of the prior decision, it is impossible to avoid the conclusion that the error, though one of fact, goes to jurisdiction.
The 2019 DFAT Report makes clear that the PTA had never been formally suspended, that it had been used sporadically during the period of its “effective suspension” and that effective suspension had been lifted. That report was not available to the Authority, as its decision was made prior to its publication, but I accept the applicant’s contention that the suspension was lifted before the Authority decision. The Authority only needed to consider the observations of the Federal Court to understand that it needed to consider more closely the issue of the application of the PTA. However, the Authority elected not to consider any new information from the applicant about the updated DFAT reports that it did obtain. The applicant asserted, correctly, that the PTA was “yet operative”[98] but the Authority failed to use its power under s.473DC of the Migration Act to obtain further information from him. That failure was, in my view, unreasonable, having regard to the clear and specific guidance provided by Mortimer J in DIJ16.
[98] CB 138
I find that the first ground has been established. For the same reasons, I find that the second ground has also been established.
It is not strictly necessary to deal with the remaining grounds. However, I am persuaded by the applicant’s submissions that Ground 3 has also been established. The Authority accepted at [16][99] that one of the applicant’s brothers, K, had been granted protection in Australia. Neither the Departmental file nor the reasons for granting protection were before the Authority. Nevertheless, the Authority found at [26] that the profile of the applicant in Sri Lanka and that of his family, including K, was not such as to put the applicant at risk. It follows that the reasons why K was granted protection were relevant to the review. For the purposes of s.473CB of the Migration Act the Secretary, if he had turned his mind to the issue, would have been bound to consider that information relating to the grant of protection to K was so relevant. Accordingly, even if that information was not before the delegate, it should have been provided to the Authority. The breach is material because the information could have made a difference to the outcome.
[99] CB 145
For its part, the Authority, having been made aware of the grant of protection to K, should have obtained for itself the information relating to that grant under s.473DC of the Migration Act. I accept the applicant’s submissions in that regard. The failure by the Authority to get the missing information was unreasonable. The Minister disputes that any error goes to jurisdiction because the Court has no evidence about K’s claims for protection. That, however, is to seek to make a virtue out of the vice identified. It was at least possible that K’s profile led to the grant of protection, and the Authority needed to explore that possibility.
I accept the Minister’s submissions concerning Ground 4. Those submissions demonstrate that the Authority gave adequate consideration at [23]-[25] to the applicant’s claims that the SLA was continuing to harm his family in Sri Lanka. This ground is otherwise an appeal to the merits of the case.

Conclusion

The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks in the form of the constitutional writs of mandamus and certiorari.
I will hear the parties as to costs.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 2 February 2021