DPH17 v Minister for Immigration & Anor - [2019] FCCA 2258

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPH17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2258

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 erred in characterising new argument as new information, or failed to properly consider an integer of the applicant’s claims, or made a legally unreasonable finding considered – jurisdictional error established in the characterisation of an argument as new information.

Legislation:

Migration Act 1958 (Cth), ss.473CC, 473DC, 473DD

Cases cited:

ABAR15 v Minister for Immigration (No 2) [2016] FCA 721

ADN18 v Minister for Home Affairs [2018] FCA 1677

Applicant S395/2002 v Minister for Immigration (2003) 203 ALR 112

Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630

Buadromo v Minister for Immigration [2017] FCA 1592

Carrascalao v Minister for Immigration [2017] FCAFC 107

CVK16 v Minister for Immigration [2017] FCA 1434

CVK16 v Minister for Immigration & Anor [2017] FCCA 235

DGZ16 v Minister for Immigration [2018] FCAFC 12

DNA17 v Minister for Immigration [2019] FCAFC 146

Dranichnikov v Minister for Immigration (2003) 197 ALR 389

Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2) [2017] FCA 1377

Minister for Immigration v Li (2013) 249 CLR 332

MZYPW v Minister for Immigration [2012] FCAFC 99

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

NAHI v Minister for Immigration [2004] FCAFC 10

NAJT v Minister for Immigration (2005) 147 FCR 51

Singh v Minister for Immigration (2001) 109 FCR 152

Applicant:

DPH17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2530 of 2017

Judgment of:

Judge Driver

Hearing date:

16 August 2019

Delivered at:

Sydney

Delivered on:

3 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms T Baw, with Ms R Kumar

Solicitors for the Applicant:

Kah Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The name of the first respondent is amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision 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 SYDNEY

SYG 2530 of 2017

DPH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 7 July 2017. 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 male citizen of Sri Lanka, who arrived in Australia, apparently at Christmas Island, on 13 October 2012 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 28 and 165
On 18 April 2016, the applicant applied for a Safe Haven Enterprise (Subclass 790) Visa (SHEV).[2]
[2] CB 8-46, 88 and 165
In a statement provided with his SHEV application, the applicant claimed to fear harm in Sri Lanka on the following bases:[3]
a)he was a young Tamil whose residence adjoined a Liberation Tigers of Tamil Eelam (LTTE) base and hence he could be suspected of LTTE involvement;
b)the Sri Lankan authorities suspected that the applicant's brother was an LTTE member;
c)the applicant believed the authorities suspected his family, including the applicant, to have LTTE links as the authorities claimed to have found weapons in one of the applicant's mother's properties; and
d)the applicant departed Sri Lanka illegally and claimed asylum.
[3] CB 47-54
On 11 November 2016, the delegate refused the applicant's visa application.[4] The delegate did not accept that:
a)the Sri Lankan Army (SLA) found weapons at the applicant’s family’s previous house or suspected the applicant’s family of hiding weapons;[5]
b)the authorities were looking for the applicant and his family from 2008 until 2010;[6]
c)the applicant’s brother was of interest to the Sri Lankan authorities and questioned in 2010 about the location of weapons and his cousin “J”;[7]
d)the applicant’s brother fled Sri Lanka due to a fear of persecution;[8]
e)the applicant fled Sri Lanka due to fear of persecution;[9]
f)up until six months before the delegate’s decision, the Sri Lankan authorities had been going to the applicant’s house in Jaffna for the past six years, looking for him and his brother;[10] and
g)the applicant departed Sri Lanka illegally.[11]
[4] CB 159-181
[5] CB 170 and 172
[6] CB 169
[7] CB 171-172
[8] CB 172
[9] CB 172
[10] CB 172
[11] The delegate noted in his reasons that while the applicant stated at the end of his statement of claims that he left Sri Lanka illegally, this appeared to be a mistake, as the information before the delegate, including the applicant’s evidence in the SHEV application and at interview confirmed he departed legally (CB 173)

Authority’s decision

On 11 November 2016, the application was referred for review to the Authority.[12]
[12] CB 182-185
On 6 December 2016 a third party provided the Authority with written submissions dated 5 December 2018 on behalf of the applicant (6 December submissions).[13] The 6 December submissions included the following statement:[14]
The applicant departed legally however could be perceived of having departed illegally as he would be returned on a travel document, resided adjacent to an LTTE office, the authorities searched the applicant’s family property for weapons, the applicant and his family were suspected of LTTE links for reasons outlined in the written claims, the applicant’s siblings are in Switzerland (a country where pro LTTE Tamil diaspora is active), the applicant’s maternal cousin was a person of interest to the CID and as a result the applicant and his brother attracted adverse attention in the past, for these reasons it is reasonable to infer that the applicant faces a real chance of serious and or significant harm if returned to Sri Lanka.
[13] CB 345-349
[14] CB 347
The Authority acknowledged the 6 December submissions at [4] of its written reasons[15] and found that, in so far as the 6 December submissions included argument about issues and references to claims and evidence before the delegate, they did not constitute new information.[16]
[15] CB 354
[16] CB 354 at [4]
The Authority further observed that the 6 December submissions referred to other Authority decisions[17] and that to the extent that this material was offered as “legal argument”, it did not amount to new information.[18]
[17] CB 354 at [5]
[18] CB 354 at [5]
At [6] and [8] of the Authority’s reasons, it stated:[19]
[19] CB 354
The migration agent has referred to country information and a new claim that was not before the delegate and is new information. The IAA must not consider any new information from an applicant unless satisfied exceptional circumstances justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.
…
It is submitted in the IAA submission that ‘[t]he applicant departed [Sri Lanka] legally however could be perceived of having departed illegally’ due reasons known to the applicant prior to the delegate’s decision, and on this basis he faces a real chance of serious harm if returned to Sri Lanka. I am satisfied that this new claim relates to events that pre-date the delegate’s decision and the IAA submission does not provide any reason as to why this information was not provided to the delegate before the decision was made. I also note the applicant was legally represented both in respect of his SHEV application and during the applicant’s interview with the delegate on 27 October 2016 (SHEV interview), and these matters have not previously been mentioned. Further, the issue of whether the applicant was at risk of harm on account of his departure method was squarely at issue at the SHEV interview and at no point did the applicant, or his representative, raise a claim that he feared being imputed as an illegal departee. I also note the issue was not raised in the applicant’s representative’s post-SHEV interview submission. In the circumstances, I am not satisfied this new claim represents credible personal information or could not have been provided before the delegate’s decision was made.
The Authority identified the applicant's claims at [10] of its reasons.[20] These included a claim that he would be harmed because of his illegal departure from Sri Lanka.
[20] CB 355
The Authority found at [23] of its reasons that overall the applicant's evidence in relation to a number of his past experiences prior to coming to Australia was unconvincing.[21] In particular, there were a number of inconsistencies in the applicant's evidence that undermined the credibility of his claims. The Authority did not accept that the SLA had searched the applicant's home for weapons, did not accept that the applicant, his brother, or J, were of adverse interest to the authorities, and was not satisfied that the applicant was a person of interest to the Criminal Investigation Department (CID), the SLA, or any other arm of the Sri Lankan government.[22]
[21] CB 357
[22] CB 360 at [35]
The Authority accepted that as a Tamil the applicant may be at risk of facing societal discrimination, but found that this would not constitute serious harm.[23] The Authority was also not satisfied that the applicant was at risk of harm because of his age or his profile as a young Tamil male.[24]
[23] CB 361 at [37]
[24] CB 361 at [38]
The Authority had regard to the UNHCR[25] 2012 Guidelines and, given its findings about the applicant's profile and having regard to country information, concluded that the applicant did not face a real chance of serious harm because of “his Tamil ethnicity, his former place of residence, his age, or on account of any actual or imputed LTTE connections, including familial connections … or for any other reason, upon his return to Sri Lanka, now or in the foreseeable future”.[26]
[25] United Nations High Commissioner for Refugees
[26] CB 361 at [39]-[40]
The Authority referred to the applicant's claim in his SHEV statement that he could be jailed for a long period for having departed Sri Lanka illegally.[27] Further, the Authority referred to the applicant's claim in the 6 December submissions that the delegate failed to consider the prospect of the applicant facing bail and the financial capacity of the applicant and/or his family members to pay a fine for the applicant's illegal departure from Sri Lanka.[28] However, the Authority noted the applicant's evidence that he departed Sri Lanka legally in 2011 (emphasis added).[29] Further, the Authority noted that the applicant had discussed his legal departure from Sri Lanka in his SHEV interview and at no point did the applicant, or his representative, dispute it.[30] Accordingly, the Authority was not satisfied that the applicant departed Sri Lanka illegally.[31]
[27] CB 362 at [43]
[28] CB 362 at [43]
[29] CB 362 at [43]
[30] CB 362 at [43]
[31] CB 362 at [43]
The Authority concluded that “having regard to the applicant's claims individually and cumulatively” he did not have a well-founded fear of persecution.[32] The Authority similarly stated, in the context of dealing with the complementary protection criterion, that it had considered “the applicant's circumstances both individually and cumulatively”.[33] In this respect, the Authority concluded that the applicant did not face a real risk of significant harm.
[32] CB 362 at [44]
[33] CB 362 at [51]

The current proceedings

These proceedings began with a show cause application lodged on 9 August 2017. The applicant now relies upon an amended application filed on 13 February 2019 (in respect of which leave was granted by me by orders made on 11 February 2019). There are three grounds in that application as amended:
1. The IAA erred by failing to consider relevant information, and by failing to consider all of the integers of the applicant’s claim for the purposes of s.36(2)(a) and 36(2)(aa) of the Migration Act.
Particulars
a.      The IAA erred by:
i.      erroneously finding at [8] of its decision that the Applicant had raised a new claim but in fact that claim clearly arose on the material before the Delegate;
ii.     erroneously characterising the alleged new claim as involving new material;
iii. erroneously disregarding all the component integers of the Applicant’s claim by irrelevantly applying s.473DD of the Migration Act; and
iv.      the fact that the Applicant would be identified as a failed asylum seeker if he returned to Sri Lanka clearly arose on the material before the Delegate and the IAA and the claim ought to have been dealt with.
2. The IAA erred by failing to consider [giving] a proper genuine and realistic consideration to the merits of the case.
Particulars
a. The IAA found that it was implausible that the authorities would not be aware of the applicant’s family’s location in a two year period between 2008 to 2010.
b. The applicant explained that it was possible that the authorities seeking the applicant’s family were different to the authorities that interacted with him and his family in daily life.
c. The IAA failed to make any analysis of it, failed to explain why it should be rejected or accepted and left the resolution of that submission unstated.
3.The IAA erred by making a finding that was legally unreasonable.
Particulars
a. The IAA found at D[42] CB261 that none of the articles suggest the persons were seriously harmed on account of them claiming asylum abroad.
b. However that finding was contrary to the country information and the material provided.
c. The IAA cherry picked the country information by relying on some reports to support some of its findings but ignoring other parts of the same report that supported the claim of the applicant.
In addition to the court book filed on 6 November 2017, I received into evidence the affidavit of Michael Kah made on 4 February 2019, to which is annexed a bundle of country information.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 16 August 2019. I have been assisted by those submissions.

Consideration

Ground 1 – did the Authority err by treating a new claim as “new information”?

Applicant’s contentions

The Authority stated at [8][34] that the applicant made a new claim that although he departed Sri Lanka legally, he could be perceived by the authorities to have departed illegally. However, rather than being a new claim, the claim was raised squarely on the evidence and the country information that was before the delegate and the Authority, and accordingly the delegate and the Authority were required to consider it.[35]
[34] CB 355
[35] Dranichnikov v Minister for Immigration (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration (2003) 203 ALR 112
Whilst the claim was not expressly articulated, it did arise sufficiently from the material as to require a reasonably competent decision-maker in the circumstances to appreciate its existence, for the following reasons:
a)it was accepted at the interview with the delegate that the applicant lost his passport;[36]
b)therefore, if he was forcibly returned to Sri Lanka he would be travelling on temporary travel documents;
c)the applicant would also be returning as a failed asylum seeker from Australia;
d)when the applicant stated that he feared imprisonment for having “departed Sri Lanka illegally”,[37] it is reasonably open that the applicant meant that he would be imputed to be;
e)country information states that the mere suspicion of illegal departure is sufficient for the applicant to be charged, arrested and imprisoned under Sri Lankan law;[38]
f)accordingly, the applicant may be detained or imprisoned until it is confirmed that he departed illegally, if it can be confirmed, and in that period he could be exposed to serious or significant harm; and
g)the applicant’s representative (who was not present at the SHEV interview) used the written submissions to the Authority to clarify the claim in accordance with the Practice Direction;[39]
h)it could not have been “new information”, as it would have been provided separately to the submissions, pursuant to the Practice Direction;[40] and
i)by misunderstanding the nature of the applicant’s submissions, the Authority failed in its statutory task of reviewing the decision under s.473CC of the Migration Act 1958 (Cth) (Migration Act) by reference to all of the material.
[36] CB 165
[37] CB 50
[38] DFAT Country Information Report, Sri Lanka, 24 January 2017 at 5.21, Annexure A to the affidavit of Mr Kah
[39] CB 342
[40] CB 343; see also DGZ16 v Minister for Immigration [2018] FCAFC 12
The terms of the Practice Direction deal differently with submissions and new information. Clause [21] of the Practice Direction is not directed to new information, so new information is not restricted by the five page limit. Clause [21] is intended to be directed to why the applicant disagrees with the decision of the Minister’s Department or any claim or matter the applicant presented to the Ministers Department that was overlooked.[41]
[41] DGZ16
Therefore, the Authority erroneously characterised the applicant’s clarification of an existing claim in his submissions as involving “new information”. There was no new information presented, rather it was clearing up the decision-maker’s misunderstanding of a claim that had arisen on the material before the delegate. The submission relied on the existing facts to support the existing claims, including that the applicant lost his passport; would be returning on emergency travel documents; and would be returning as a failed asylum seeker from Australia. Accordingly, the Authority irrelevantly applied the requirements of s.473DD of the Migration Act, due to its misunderstanding.
When all of the above factors are considered cumulatively, it was tolerably clear that the claim arose on the material before the delegate and the claim had not been considered.
The country information provides that[42] most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the Immigrants and Emigrants Act. In most cases, these individuals have been arrested by the police at Colombo’s airport. The returnees are transferred to police custody and come before a Magistrates Court up to 24 hours after arrival or longer if a Magistrate is not available. If the returnee pleads guilty they are fined and are free to go. In most cases where a returnee pleads not guilty, they are granted bail on the basis of a personal surety or they may be required to have a family member act as guarantor. When a guarantor is required, the returnees may need to wait until a family member comes to court to collect them.
[42] DFAT Country Information Report, Sri Lanka 24 January 2017, at 5.21-5.22

Significantly, the Authority expressly traversed that part of the aforementioned country information at [43], which demonstrates its awareness of perceived illegal departure. Yet the Authority explicitly refused to apply it because it mischaracterised the submission as being “new information”. This error may have partly arisen due to the fact that the Authority did not interview the applicant, rather it had to rely on interpreting the delegate’s questioning via a recording. Accordingly, the consideration of credibility of the applicant’s claims here was based on very static queries; there is a reliance on the omission by the applicant of the claim of being imputed with illegal departure. However, in the absence of a direct personal interview the Authority lacked the type of personal, responsive and direct interaction which occurs in an oral interview, the reactive questioning that allows the decision-maker to obtain the full picture as to the applicant’s credibility and claims.[43] Furthermore, the country information explains that a mere suspicion of illegal departure is sufficient for an arrest under Sri Lankan law. Accordingly, in the circumstances it would have been reasonable and prudent for the Authority to have given consideration of the potential impact on the applicant.
[43] E McDonald & M O’Sullivan, “Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime” (2018) 41(3) UNSW Law Journal 1003 at 1028

Minister’s contentions

The applicant contends that the Authority fell into error at [8] of its decision record in treating as a new claim the applicant’s contention raised in his submission to the Authority that he had departed Sri Lanka legally but could be perceived by the authorities to have departed illegally (New Claim).
The submission must be rejected. The applicant claimed in his statutory declaration supporting the SHEV application that:[44]
[27] If I am returned to Sri Lanka I believe I could be seriously harmed by the Sri Lankan authorities and my life would be in danger for the following reasons:
[44] CB 47-51
…
d. As I departed Sri Lanka illegally and claimed asylum I believe the authorities would be suspicious of me. I could be jailed for a long period for having departed Sri Lanka illegally.
In his decision the delegate in relation to the applicant’s claim of being at risk for having departed Sri Lanka illegally found that the applicant must have mistakenly stated that he departed illegally as “the information before me indicates that he left Sri Lanka via Colombo airport and he departed legally”.[45]
[45] CB 173
In his submission to the Authority the applicant submitted:[46]
[7] The applicant departed legally however could be perceived of having departed illegally as he would be returned on a travel document, resided adjacent to an LTTE office, [etc]…
[8] As the applicant departed legally the delegate did not assess if the applicant would face serious and or significant harm as s 45 of the [Immigrants and Emigrants Act] of Sri Lanka would not be enforced.
[46] CB 347
The applicant submits that the Authority erroneously characterised the applicant’s clarification of an existing claim in his submissions as involving new information. However, the applicant was not purporting to clarify a claim in his submissions to the Authority. Rather, he submitted (for the first time) that he would be imputed to have departed illegally.
From a fair reading of the applicant’s submission to the Authority, the applicant appeared to accept that he had been misunderstood in his claim to have departed Sri Lanka illegally. Nevertheless, the applicant proceeded (on the basis that he departed legally) to advance the New Claim, that he would be perceived to have departed illegally.
As the Authority correctly found, the New Claim was not raised before the delegate, and it therefore constituted “new information” for the purposes of Part 7AA of the Migration Act.[47] It has been held that a new claim may be considered to be new information. As I opined in CVK16 v Minister for Immigration & Anor[48] at [45]:
…it is … artificial to distinguish between “claims” and “information”. While a “claim” in the most general terms is simply an expression of fear of return to another country for some reason, a “claim” does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly “information” for the purposes of ss.473DC and 473DD of the Migration Act.
[47] CB 204 at [5]
[48] [2017] FCCA 235
My approach to s.473DD was upheld on appeal in CVK16 v Minister for Immigration[49] at [50]-[51].
[49] [2017] FCA 1434
That the applicant relied upon “existing facts” to assert the New Claim did not overcome the fact that what was being asserted was new information for the purposes of s.473DC.
The Authority otherwise applied s.473DD to the New Claim, and no error is identified in respect of the Authority’s findings at [5].
In the circumstances, the Court would not find that the New Claim squarely arose on the materials before the Authority. The Court would not impute a claim to have arisen on the materials that was the opposite of a claim that was expressly raised. The Authority was not required to engage in “constructive or creative” activity in identifying a claim not expressly advanced by a review applicant.[50]
[50] citing NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

Resolution

This ground concerns the manner in which the Authority dealt with a submission to it made on behalf of the applicant on 5 December 2016. As noted by the Authority at [5][51] the submission contains legal argument which is not new information and was considered by the Authority.
[51] CB 354
The Authority at [6] and [7] also notes country information introduced by the submission which the Authority decided to consider on the basis of exceptional circumstances. That decision is not the subject of any dispute between the parties.
This ground addresses the Authority’s statement at [8] as follows:[52]
It is submitted in the IAA submissions that ‘[t]he applicant departed [Sri Lanka] legally however could be perceived of having departed illegally’ due reasons known to the applicant prior to the delegate’s decision, and on this basis he faces a real chance of serious harm if returned to Sri Lanka. I am satisfied that this new claim relates to events that pre-date the delegate’s decision and the IAA submission does not provide any reason as to why this information was not provided to the delegate before the deicison was made. I also note the applicant was legally represented both in respect of his SHEV application and during the applicant’s interview with the delegate on 27 October 2016 (SHEV interview), and these matters have not previously been mentioned. Further, the issue of whether the applicant was at risk of harm on account of his departure method was squarely at issue at the SHEV interview and at no point did the applicant, or his representative, raise a claim that he feared being imputed as an illegal departee. I also note the issue was not raised in the applicant’s representative’s post-SHEV interview submission. In the circumstances, I am not satisfied this new claim represents credible personal information or could not have been provided before the delegate’s decision was made.
[52] CB 354-355
The Authority was directing its attention to the submission reproduced at CB 346-349. Under the heading, “Responding to the delegate’s decision”, that submission plainly introduces legal argument which was considered by the Authority on review. From [9], the submission introduces country information which the Authority considered. The presently material paragraphs of the submission are [7] and [8] which appear under the heading “Responding to the delegate’s decision”. There it was put on behalf of the applicant:
The applicant departed legally however could be perceived of having departed illegally as he would be returned on a travel document, resided adjacent to an LTTE office, the authorities searched the applicant’s family property for weapons, the applicant and his family were suspected of LTTE links for reasons outlined in the written claims, the applicant’s siblings are in Switzerland (a country where pro LTTE Tamil diaspora is active), the applicant’s maternal cousin was a person of interest to the CID and as a result the applicant and his brother attracted averse attention in the past, for these reasons it is reasonable to infer that the applicant faces a real chance of serious and or significant harm if returned to Sri Lanka.
As the applicant departed legally the delegate did not assess if the applicant would face serious and or significant harm as s 45 of the I and E Act of Sri Lanka would not be enforced. Nevertheless it is submitted that if the applicant is returned from Australia he would be returned on an emergency travel document and would be identified by the authorities as a Tamil who is returning after having made unsuccessful claims for protection in Australia. Therefore it is submitted that the applicant could be detained or imprisoned until it is confirm he departed legally. The length of time the applicant would be detained at the airport or in a prison until he is cleared could expose him to serious and or significant harm. The applicant’s familial connection to a maternal cousin – [J] and other siblings residing in Switzerland would exacerbate the risk of being harmed.
It must be noted that the delegate at page 8 states “I do not find that the authorities had a significant interest in [J]” thereby implying that the authorities did in fact have some interest in [J] and it is for this reason that the delegate also accepts that the authorities had a low level interested in [J] [6]. The delegate further considers a possibility at page 8 and elsewhere that [J] may have failed to register as required. If in fact [J] failed to register as required, the applicant and his family members could be at risk of being harmed as the authorities would no longer have a low level interest in [J] but a high level of interest for failing to register.
As I put to counsel during argument, there are three possible ways of viewing that part of the submission. First, it may be that the submission sought to introduce new information as found by the Authority. Alternatively, the submission may simply be a legal argument that the delegate had overlooked a claim which, though not expressly put, squarely arose from the material. Thirdly, the submission might be viewed as a creative attempt to create a claim from the material before the delegate which did not squarely arise at the time of the delegate’s decision.
Upon reflection, the alternative possibilities discussed at the hearing probably do not assist the applicant, at least to the extent that they attempt to distinguish claims from information. In CVK16 v Minister for Immigration[53] at [49]-[51], McKerracher J stated:
[53] [2017] FCA 1434; see also ADN18 v Minister for Home Affairs [2018] FCA 1677 at [39]
The narrow point for the appellant is that:
(a)there is no impediment on the Authority considering new claims based on the same existing information; and
(b)if a new claim on the same information is put before it, it should consider it.
Such a submission for the appellant might well have force in a different forum and thus does give pause for consideration. In courts of law, if all the same information or evidence is relied upon before the reviewing court and there is otherwise no prejudice, a different legal consequence could be advanced and considered. However, the Migration Act dictates a limited function of the Authority. As the primary judge observed (at [44]), if such a submission were accepted, it would disregard what is plainly Parliament’s intended interpretation of s 473DC and s 473DD. In my view, it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances. The provisions must be read in their context. That context includes these factors:
(a)The Authority does not stand in the shoes of the original decision maker in the same way as the AAT. It cannot substitute its own decision; it can only affirm the decision or remit the case for further consideration.
(b)The Authority’s function is not to deal with the applications for review but to review adverse decisions referred to it by the Department.
In my view, given the limited statutory role of the Authority, the reasons of the Federal Circuit Court were correct. The Explanatory Memorandum, if it were necessary, puts the matter beyond doubt.
For present purposes it is important to note that it is now well established that, in dealing with a submission provided to the Authority, it will frequently be necessary for the Authority to separate argument from information.[54] Where information is identified in a submission, it will generally be necessary for the Authority to consider whether the information is “new” information as defined.
[54] See DNA17 v Minister for Immigration [2019] FCAFC 146 at [38]
It seems to me that, leaving aside the lack of a distinction between claims and information, and focusing instead on the distinction between argument and information, as a general proposition in any case there are four possibilities for the Authority to consider when dealing with a submission:
a)there may be a reagitation of arguments previously put using information that was before the delegate;
b)new arguments responsive to the delegate’s decision may be raised which draw on information that was before the delegate;
c)a submission may take issue with findings by the delegate and seek to deploy information that was not before the delegate in order to respond to the delegate’s findings; or
d)the submission may raise an argument or claim that was not considered by the delegate and seek to support it by reference to information that was not before the delegate.
It may safely be assumed that example (a) above would not involve the provision of new information. Conversely, example (d) would involve the provision of new information. Example (b) would probably not involve the provision of new information but example (c) may do. A finding on whether or not it does will generally involve careful consideration.
The present case could be an example of the circumstances arising as examples (b) or (c) above.
The argument advanced by the applicant involved both a concession and a new proposition. The concession was that, contrary to what he had originally claimed, the applicant had left Sri Lanka legally. The new proposition was, notwithstanding that fact, there was a risk that the applicant might be imputed to have left Sri Lanka illegally. Another way of putting the argument (which was in fact not put) would have been to say that the authorities may not have available to them a record of the applicant’s legal departure and may therefore treat him as an illegal departee.
Upon analysis, the argument is plain enough but what is the information, or more particularly, the new information, which supports it? There is no reference to any country information about the accuracy or completeness or availability of Sri Lankan migration information. It is really no more than a bald assertion. The fact that the applicant resided adjacent to an LTTE office was not new information. Nor was the information that the authorities searched the applicant’s family’s property for weapons, or that his family were suspected of LTTE links for reasons outlined in his written claims. His family connections were not new information. The fact that the applicant would be returning on an Australian issued travel authority document was hardly new, that as would have been known upon the applicant’s undocumented arrival.
In my view, the applicant’s argument was a new argument but was based on information that was before the delegate. It fell within the class described at [46(b)] above. It may not have been a strong argument, but the Authority was wrong to characterise the new argument as new information.
Having erred in its characterisation of the argument as new information for the purposes of s.473DC and s.473DD, the Authority fell into error which artificially constrained the review, thus going to jurisdiction. The applicant should receive the relief he seeks.

Ground 2 – did the Authority err by failing to give proper, genuine and realistic consideration to the applicant’s case?

Applicant’s contentions

In Carrascalao v Minister for Immigration,[55] the Minister did not contest that he was obliged by law to give proper, genuine and realistic consideration to the merits of the case. However, there was a dispute as to what that involved. The Full Federal Court comprised of Griffiths, White and Bromwich JJ held at [46]-[47]:
In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
Thus the central focus in the two proceedings here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.
(applicant’s emphasis retained)
[55] [2017] FCAFC 107
The finding in Carrascalao was applied by Griffiths J in Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2)[56] at [48]: [57]
Other authorities have indicated that, merely because a matter has been “touched upon” by a decision-maker, does not necessarily mean that it has been taken into account or considered in the relevant sense (see, for example, NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; 115 FCR 561 at [155] per Allsop J (as his Honour then was) and Elias v Cmr of Taxation [2002] FCA 845; 123 FCR 499 at [62] per Hely J). Necessarily, close attention must be given to the particular facts and circumstances of the case.
[56] [2017] FCA 1377
[57] See also Singh v Minister for Immigration (2001) 109 FCR 152 per Sackville J at [58]
The approach in Malek Fahd was referred to by Flick J in Buadromo v Minister for Immigration.[58] His Honour found at [53]-[54] that:
The reason it is insufficient to simply advert to a particular consideration is not because the primary decision-maker may have undervalued it, but because — despite appearances — in truth the decision-maker may not have considered it at all: Commissioner of Taxation v Pham [2013] FCA 579 at [39]; (2013) 134 ALD 534 at 544 per Katzmann J. It “is not sufficient simply to advert to the issue … without any analysis”: Fraser v Minister for Immigration & Border Protection [2014] FCA 1333 at [22] per Perram J. .... Proper consideration required some explanation as to why Mr Buadromo’s statements should either be accepted or not accepted.
A proper consideration of the claims made by Mr Buadromo, it is respectfully concluded, required more than merely “noting” what Mr Buadromo had said.
(applicant’s emphasis retained)
[58] [2017] FCA 1592
For evidence to be properly considered, a decision-maker must give more than mere “lip service” to it. As found in NAJT v Minister for Immigration[59] at 92-93 per Madgwick J (Conti J agreeing):
A decision-maker cannot be said to “have regard” to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration.
[59] (2005) 147 FCR 51

In MZYPW v Minister for Immigration,[60] despite the decision-maker’s reasons referring to the claim as part of its dispositive reasoning, Flick, Jagot and Yates JJ determined that the claim had not been considered or resolved. Flick and Jagot JJ held at [19] that the decision-maker’s reference to the claim was made in the context of recording a submission and that the resolution of the submission was left unstated. Their Honours concluded at [20] that the issues relevant to the assessment of the claim were not taken into account. Yates J at [38] concluded that although the decision-maker’s reasons stated that the submission was “considered”, it had, in fact, been “simply side-stepped”.
[60] [2012] FCAFC 99
In this case, at [30],[61] in respect of the period from 2008 to 2010, the Authority stated:
The delegate put to the applicant that in the circumstances it seemed implausible that the authorities would not be aware of the applicant’s family’s location during this period. The applicant’s response was that the authorities were likely waiting for the right time to act, or it was possible that the authorities seeking the applicant’s family were different to the authorities that interacted with him and his family in daily life.
(applicant’s emphasis retained)
[61] CB 359
Part of the resolution of the applicant’s response was stated by the Authority at [32]:[62]
I find it difficult to accept the applicant’s claim in the SHEV interview that the authorities were interested in him prior to his departure from Sri Lanka but did not take any action because they were waiting for an opportunity to act.
[62] CB 359
However, there is said to have been a failure by the Authority to make any finding on the later part of the applicant’s response, ie. the submissions.
The applicant contends that the Authority refers to the applicant’s submission but fails to make any analysis of it, fails to explain why it should be rejected or accepted, and leaves resolution of the submission unstated. In short the Authority failed to give it any genuine consideration.
The other parts of the applicant’s evidence are said to corroborate the applicant’s submission, as follows:
a)first, the applicant’s mother owned two houses (House A and House B) that were near each other. The applicant witnessed SLA soldiers search for weapons that were suspected of being buried in the garden of House A, but they did not search House B which was opposite a large SLA camp. It is highly likely that if the authorities were aware that the applicant and his family owned House B they would have searched both houses;
b)secondly, after the search of House A the family moved to House B which was opposite a large SLA camp. The applicant explained, as stated by the Authority at [17], that:[63]
[w]hile living in House B, neighbours informed the applicant’s family that SLA soldiers frequently went to House A and enquired of their whereabouts. It was apparent that the SLA did not know the applicant’s mother also owned House B, which was opposite the large SLA camp.
c)thirdly, the applicant’s family were afraid to report the search to the police as they feared that the police would detain them and hand them over to the SLA.[64] This implies that it was evident to the applicant’s family that the soldiers in the SLA camp opposite House B did not know about House B and they wanted to keep it that way; and
d)fourthly, it was not until July 2010 that two CID officers came to House B and asked the applicant as to the location of his brother and his cousin. The CID officers advised that his brother was required to report to the CID office in another town later that day. His brother attended that CID office and was accused of having stored weapons for the LTTE; he was detained for two hours, interrogated and severely beaten. The implication is that it was the CID rather than the SLA that were after the applicant’s brother and cousin, and it was also the CID from another town. This supports the inference that the soldiers in SLA camp opposite House B were not involved in the investigation of the applicant’s family. The officers did not come to their house from that camp and the brother was not asked to report to that camp.
[63] CB 357
[64] at CB 316
Accordingly, a consideration of the above evidence gives support to the applicant’s explanation that the authorities seeking the applicant’s family were different to the authorities that interacted with him and his family in daily life from the SLA camp, opposite House B.
The applicant submits that, at the very least, the Authority had a duty to provide a genuine consideration, active intellectual engagement, proper analysis, and explanation for why the submission should be accepted or rejected. The failure to do so means the Authority fell into jurisdictional error.

Resolution

I prefer the Minister’s submissions in relation to this ground.
The applicant asserts that the Authority failed to give proper, genuine and realistic consideration to the merits of the case. In particular the applicant refers to an explanation the Authority noted he had given to the delegate in response to a concern raised by the delegate at the SHEV interview regarding how it was that the authorities would not be aware of his family’s location in about 2008 to 2010.[65] The explanation given, which the applicant contends was not considered by the Authority, was that it was possible that the authorities seeking the applicant’s family were different from the authorities that interacted with him and his family in daily life (Explanation). The ground is based upon an inference drawn from the Authority’s reasons wherein at [32] the Authority expressly addressed one explanation given by the applicant to the delegate as to why the authorities were not aware of his family’s location, but not the Explanation.
[65] CB 359 at [30]
I accept the Minister’s submission that the Court should not infer that the Authority failed to consider (or to give proper, genuine and realistic consideration to) the Explanation, for the following reasons.
First, the Authority expressly referred to the Explanation at [30]. Structurally, the Authority at [30]-[33] set out its reasons as to why a number of the applicant’s claims were implausible. In having referred to the Explanation at [30] in this context, I infer that the Authority took the Explanation into account.
Secondly, it was unnecessary for the Authority to give reasons for rejecting any particular claim or explanation given by the applicant during the SHEV interview. As the Full Federal Court stated in Applicant WAEE v Minister for Immigration[66] at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
[66] [2003] FCAFC 184; (2003) 75 ALD 630
Thirdly, that the Authority referred specifically to one explanation given by the applicant at [32] of the decision record does not, of itself, permit an inference that the Explanation was overlooked. This is particularly so considering that it was not incumbent on the Authority to accept any claim advanced by the applicant.
In my view, while the applicant may be concerned that the Authority appeared to give closer attention to one of his arguments over another, that does not establish jurisdictional error. It is, rather, an example of an attempt to deconstruct the Authority’s reasons with an eye too keenly attuned to error.

Ground 3 – did the Authority make a finding that was legally unreasonable?

The applicant contends that the Authority did not refer to and rely on all of the parts of the country information that were relevant to the Tribunal’s assessment, and indeed made a finding which was contrary to the country information which it had before it. Without any explanation given by the Authority, the applicant is left unable to comprehend the reasoning for the Authority to rely only on parts of the country information but not other parts that would support his claim. The decision to “cherry pick” the country information by the Authority is said to lack any evident and intelligible justification in the sense of Minister for Immigration v Li.[67] Accordingly, this is said to lead to a result that is unreasonable or plainly unjust.
[67] (2013) 249 CLR 332
The Authority at [42][68] refers to the articles provided by the applicant:
…about Tamil returnees coming to the adverse attention of the Sri Lankan authorities after returning to Sri Lanka, with many of the articles indicating that the persons were suspected of prior LTTE involvement. However, none of the articles suggest the persons were seriously harmed on account of claiming asylum abroad, and I am not satisfied that the applicant is a person of interest to the authorities on account of any actual or imputed LTTE involvement, or for any other reason.
(applicant’s emphasis retained)
[68] CB 361
The applicant, however, submits that the Authority was in possession of other reports on Sri Lanka indicating that torture is routinely inflicted by the state agencies on detainees, whether under security laws or within the criminal justice system[69] and on returnees from abroad. Throughout the Authority decision it has referred to a UK Home Office report, “Country Information and Guidance, Sri Lanka: Tamil separatism. Version 2.0”, 19 May 2016, and that report[70] states at [6.5.1] to [6.5.6]:
[69] DFAT Country Information Report, Sri Lanka 24 January 2017, at 3.60
[70] Annexure B to the affidavit of Mr Kah
The Society for Threatened Peoples, Written statement submitted by the Society for Threatened Peoples, a non-governmental organization in special consultative status to the UN Human rights council, Ongoing oppression of minorities in Sri Lanka, 4 September 2015, stated that: ‘Returning Tamils from abroad continue being arrested at the airport. The surveillance of the civil society in the North and East is remaining high.’
The Immigration and Refugee Board of Canada reported in February 2015 that: ‘Sources report that individuals returning from abroad are particularly subject to screening.’ A July 2015 International Truth & Justice Project (ITJP) Sri Lanka report on Sri Lanka's Survivors of Torture and Sexual Violence 2009-2015 stated that: ‘A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture them.’
…
The International Crisis Group noted in an August 2015 report that: ‘Tamils returning from abroad continue to be arrested under the PTA [Prevention of Terrorism Act] on suspicion of old LTTE involvement. According to some reports, after police detention, many are sent to the military-run rehabilitation program. Tamil politicians and activists allege that secret detention centres established by the old government continue, though officials deny this.’
In an August 2015 study of 148 Sri Lankan torture cases perpetrated since the end of the Sri Lankan civil war in May 2009, Freedom From Torture recorded that 139 people (94 percent of all cases) were of Tamil ethnicity, and the majority (142) described an association with the Liberation Tigers of Tamil Eelam (LTTE) at some level and/or said that they had been associated with the LTTE by the Sri Lankan authorities in some way (96 percent of all cases). It further reported that ‘It is of particular concern to Freedom from Torture that more than one third of the people whose cases were reviewed in this study were detained and tortured in Sri Lanka after returning from the UK following the end of the armed conflict (55 of 148 cases or 37- [percent]). Most had been in the UK as students but three had claimed asylum and were forcibly removed after their asylum claims were rejected. All but seven of these people were detained within weeks of their arrival in Sri Lanka and the majority were specifically interrogated about their reasons for being in the UK, their activities and/or their contacts in the UK’
(applicant’s emphasis retained, footnotes omitted)
Then later in the same UK Home Office report at [6.6.3] it is stated:
The International Truth and Justice Project (ITJP) report, Silenced: survivors of torture and sexual violence in 2015, published in January 2016, stated: ‘The Sirisena government in Sri Lanka was elected one year ago, on 8 January 2015, on a promise of change. In September 2015 at the Human Rights Council in Geneva the Government of Sri Lanka sketched out a plan to deliver post-war accountability: namely a national consultation with victims, a Truth Commission, a Special Court, an Office of Missing Persons and a reparations body. On paper the plan looks impressive but the reality on the ground in the former conflict areas tells a very different story. Human rights violations by the security forces continue with impunity and a predatory climate against Tamils prevails. Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families. Victims and witnesses rightfully fear that coming forward will endanger their lives and those of their families.
It is said to be particularly telling that the aforementioned country information refers to:
a)Tamil returnees from the North or East being tortured that were not necessarily suspected or imputed with links or had actual links to the LTTE;
b)Tamil returnees that were merely students, or failed asylum seekers were also tortured; and
c)Tamil returnees that had tenuous links to the LTTE were also targeted.
Given its reliance on the other parts of the same UK Home Office report, it is said to be disingenuous of the Authority to find that none of the articles provided “suggest that seriously harmed on account of claiming asylum abroad”. It is said to be unreasonable for the Authority to rely on some parts of the UK Home Office report but turn a blind eye to other parts, for no apparent reason. The applicant submits that it is hard to avoid the conclusion that the Authority failed to apply the country information in a balanced, even-handed manner, which lead to a finding that was unfair and legally unreasonable.
The Authority’s finding is also said to be unreasonable because the second article provided by the applicant “directly contradicts” the Authority’s finding. The Daily Mirror article dated 5 March 2016[71] reports that some Swiss non-government groups said it was much too early for asylum seekers to return to Sri Lanka because they have “received reports that in 2015 returning people were arrested or abducted in Sri Lanka”. A spokesperson for the Swiss branch of Amnesty International also said that “there is an anti-terrorist law that allows the state to lock people up and the demilitarization of the North and Northeast has not yet taken place, neither have people had their land returned”. The article also reported that the spokesperson said that “a recent visit to the island confirmed that torture was still carried out”. The applicant submits that on a fair reading of the entire report, the implication is that arrest or abduction of returns could possibly lead to torture. This is said to be supported by the other country information referred to above. The applicant submits that that is another reason for a lack of any intelligible justification for the Authority reaching the finding that it made.
[71] Annexure C to the affidavit of Mr Kah
I also prefer the Minister’s submissions in relation to the third ground.
The applicant asserts that the Authority failed to consider all of the county information. The applicant refers to various reports that were before the Authority and submits that the Authority’s conclusion at [42] that “none of the articles suggest the persons were seriously harmed on account of claiming asylum abroad” was legally unreasonable.
There are two responses to the submission.
First, the Authority’s finding at [42] by reference to “the articles” was in context a reference to the articles links to which were provided in a post-SHEV interview submission by the applicant.
Secondly, as a general proposition, it was a matter for the Authority both to select, and weigh, country information as part of its fact-finding function. In NAHI v Minister for Immigration[72] the Full Federal Court stated at [11]:
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in concluding a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.
[72] [2004] FCAFC 10
Further, without finding that the Authority in this case did “cherry pick” the parts of the country information it wished to rely upon, I note that in ABAR15 v Minister for Immigration (No 2)[73] at [87] Charlesworth J stated:
Generally speaking, it may be open to the Minister (or, on review, the Tribunal) to cherry pick from among various sources of country information so as to form, by its own evaluation of the selected material, its own conclusions of fact. It may also be accepted that, as a general rule, an administrative decision that involves the weighing and evaluation of countervailing considerations is not a decision amenable to interference by a Court on judicial review merely because the Court might evaluate the considerations differently or accord different considerations more or less weight than that accorded by the Tribunal.
[73] [2016] FCA 721
It was open to the Authority at [42] to make the assessment that it did of the identified country information. No error is identified.

Conclusion

The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will order that the decision be quashed and that the matter be remitted to the Authority for reconsideration.
I will hear the parties as to costs.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 3 October 2019