FBP17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 240

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FBP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 240

File number: MLG 2489 of 2017

Judgment of: JUDGE LADHAMS

Date of judgment: 15 March 2024

Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority correctly identified information provided by applicant as new information – whether Authority erred in its consideration of whether new information provided by applicant met the requirements of s 473DD of the Migration Act 1958 (Cth) – whether Authority considered all the applicant’s claims for protection and their component integers – whether Authority made findings which were legally unreasonable – whether Authority acted unreasonably in failing to exercise discretion in s 473DC of the Migration Act 1958 (Cth) to get new information – no jurisdictional error – application dismissed.

Legislation: Migration Act 1958 (Cth) s 5AAA, 5AA, 36, 65, 473DC, 473DD, 473EA, 476, 477

Cases cited:
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89

BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

DOJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 588

DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Division: Division 2 General Federal Law

Number of paragraphs: 112

Date of hearing: 3 November 2023

Place: Perth

Counsel for the Applicant: Mr A Krohn

Solicitor for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr T Lettenmaier

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore Lawyers
ORDERS

MLG 2489 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FBP17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

15 MARCH 2024

THE COURT ORDERS THAT:
1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION

The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister made a decision refusing to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. The applicant seeks judicial review of the Authority decision under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on three grounds of application which assert multiple jurisdictional errors in various parts of the Authority decision. Broadly, the jurisdictional errors asserted relate to alleged errors in the Authority’s approach to assessing whether new information provided by the applicant met the requirements of s 473DD of the Migration Act, whether the Authority considered all of the applicant’s claims for protection and their component integers and whether the Authority’s fact finding was legally unreasonable.
For the reasons explained below, I have found that the applicant has not established that the Authority made any jurisdictional error in reaching its decision. The application for judicial review is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia by sea in August 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 1 July 2016. The applicant’s claims for protection were set out in a statutory declaration that accompanied his visa application. The applicant claimed to fear harm in Sri Lanka on account of being a Tamil from the north of Sri Lanka, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and as a failed Tamil asylum seeker with imputed links to the LTTE.
On 8 December 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection (protection visa interview). The applicant, via a representative, provided a written submission to the Department after the interview.
On 8 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority for review pursuant to s 473CA of the Migration Act.
On 11 April 2017 the applicant, via a representative, provided a new statement and various sources of country information to the Authority. The Authority found that some of the country information and part of the applicant’s statement comprised new information.
The Authority affirmed the delegate’s decision on 27 October 2017.
SUMMARY OF AUTHORITY DECISION
Information before the Authority
The Authority identified that the applicant’s statement included new information to the effect that the applicant’s family was targeted as supporters of the LTTE militants because of his elder brother’s involvement and links with the LTTE and that the applicant attended mandatory LTTE training in 2008 when he was a student. The Authority was not persuaded by the applicant’s explanation that he did not realise the significance of the information earlier in the light of the opportunities that the applicant had to provide the information to the delegate. The Authority was not satisfied that the new information was credible personal information or that exceptional circumstances existed to justify considering it.
The Authority recognised that the new country information was publicly available information that predated the delegate’s decision and that other sources of country information had been referred to in the submission provided to the Department after the applicant’s protection visa interview. The Authority was not satisfied that there were exceptional circumstances to justify considering the new country information and was also not satisfied of either of the matters in s 473DD(b) of the Migration Act.
Consideration of the applicant’s claims for protection
The Authority accepted that the applicant is a young Tamil male from the Northern Province. The Authority accepted that the applicant’s father was killed in 1994 by the Sri Lankan Navy. The Authority was not satisfied that the applicant’s father was involved with the LTTE but accepted that, as a Tamil and a fisherman, he may have been imputed with such involvement.
The Authority accepted that the applicant’s brother was abducted in 2005 and the Authority accepted the applicant’s evidence that, as far as he knows, his brother was not involved with the LTTE. On the evidence before it, including evidence indicating a high level of abduction, insecurity, violence and criminal activity in the area at the time, the Authority was not satisfied that the Sri Lankan authorities were responsible for the abduction and deemed death of the applicant’s brother.
The Authority accepted that, during the final stages of the civil war in 2009, the applicant and his family were sent to an Internally Displaced Persons (IDP) camp where they remained for six months. The Authority accepted that, while the applicant was at the IDP camp, the Sri Lankan authorities questioned him two or three times a month for a few hours each time and regularly beat him, but that he did not suffer any injuries. The Authority accepted the applicant’s evidence that he was never arrested, charged with an offence or sent to a rehabilitation camp for former LTTE members or supporters and considered that the applicant’s release from the IDP camp in 2010 indicated he was not a person of interest to the Sri Lankan authorities.
The Authority accepted that the applicant and his siblings were required to register and provide information about their backgrounds when they moved to an area within Jaffna in 2011 and that, as a young single male, the applicant was subjected to greater interrogation than his siblings. The Authority accepted that the applicant’s brother going missing during the war was a source of interest to the Criminal Investigation Department (CID) and they asked the applicant and his siblings if their brother had been with the LTTE. The Authority accepted that the interrogations took place approximately twice a month and the last time the applicant was interrogated and beaten was in 2010. The Authority accepted that nothing else happened to the applicant between this and his departure in August 2012. The Authority did not accept that the Sri Lankan authorities were monitoring the applicant’s siblings or his sister-in-law.
The Authority, taking into account the United Nations High Commissioner for Refugees (UNHCR) guidelines, did not consider that the applicant would require protection on account of his Tamil ethnicity alone and was not satisfied that the applicant would now face adverse attention from the authorities because of any imputed political opinion of his father prior to his death. The Authority was not satisfied that the Sri Lankan authorities would impute the applicant to hold a pro-LTTE or anti-Sri Lankan government political opinion because of his status as a young Tamil male, his origins in the north, his father and brother, his family’s interactions with human rights organisations or the applicant’s work as a fisherman. Based on the applicant’s personal circumstances and greatly improved country information, the Authority was not satisfied the Sri Lankan authorities would have an adverse interest in the applicant because of their previous interactions with him or his family. The Authority found that the applicant did not face a real chance of serious harm for any of the reasons he claimed should he return to Sri Lanka.
The Authority accepted that the applicant departed Sri Lanka illegally and sought asylum in Australia. The Authority did not accept that the applicant would face a real chance of harm on account of having sought asylum in Australia. The Authority considered country information in respect of people who departed Sri Lanka in contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka) (Immigrants and Emigrants Act). The Authority accepted that there was a real chance the applicant would be questioned, fined and detained briefly as part of the re-entry process, but did not accept he would face greater scrutiny or penalty upon return than any other illegal departee. The Authority did not consider that any routine questioning at the airport or any conditions that the applicant may face whilst briefly detained would constitute serious harm or significant harm and did not consider that there was a real chance that the applicant would be detained any longer than a brief period.
Based on these findings of fact, the Authority was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application on 20 November 2017 and therefore made the application within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 14 October 2023 which contains the following grounds:
1.The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
PARTICULARS
(a)The Authority did not consider the Applicant’s claim that his family were “targeted as supporters of the Liberation Tigers of Tamil Eelam (“LTTE”) militants” because of his “elder brother’s involvement and links with the LTTE”, nor his claim that he had done military training with the LTTE. (IAA Decision and Reasons [4], [5], [7])
(b)The Authority did not consider the new country information in a signed statement by the Applicant received by the Authority on 11 April 2017. (IAA Decision and Reasons [8]-[9])
(c)The Authority accepted that the Applicant’s father was killed by the Sri Lankan Navy who may have suspected him of involvement with the LTTE, that his mother died of illness related to injuries she received in the civil war, that his brother was abducted in 2005 and there is a death certificate on the basis of presumed death, that the Applicant was detained, regularly questioned (including questioning about his brother and whether the Applicant had been involved with the LTTE) and beaten and witnessed many atrocities, but the Authority did not consider whether, because of his experience of this cumulative and serious past harm, the Applicant would be more vulnerable to serious harm by being assaulted or by being in fear of assault, while undergoing detention and investigation on his return to Sri Lanka. (Decision [16], [23], [18]-[20], [21])
(d)The Authority did not consider whether the Applicant while in prison or detention may suffer serious harm by assault or torture, because of the general culture of violence and torture of those in detention or prison.
3.The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
PARTICULARS
(a)The Authority erred in regarding the Applicant’s claim that his family were “targeted as supporters of the Liberation Tigers of Tamil Eelam (“LTTE”) militants” because of his “elder brother’s involvement and links with the LTTE” as being “new information” within the meaning of section 473DC(l) of the Migration Act 1958 (“the Act”). (IAA Decision and Reasons [4], [7])
(b) Further or in the alternative to particular (a) to this Ground, the Authority erred in regarding the Applicant’s claim that his family were “targeted as supporters of the Liberation Tigers of Tamil Eelam (“LTTE”) militants” because of his “elder brother’s involvement and links with the LTTE”, and his claim that he had done military training with the LTTE, as not being “credible personal information” within the meaning of section 473DD(b)(ii) of the Migration Act 1958. (IAA Decision and Reasons [4], [5], [7])
(c)The Authority erred in in not finding some new country information submitted in a signed statement by the Applicant received by the Authority on 11 April 2017 was issued only a short time before the delegate’s decision and therefore “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”, such as to meet the requirements of section 473DD(b)(i) of the Act. (CB 196-198, 203-204, IAA Decision and Reasons [8]-[9])
(d)The Authority erred in not finding exceptional circumstances within the meaning of section 473DD(a) of the Act, to consider new country information submitted in a signed statement by the Applicant received by the Authority on 11 April 2017. (IAA Decision and Reasons [8]-[9])
4. The authority fell into jurisdictional error in that it was legally unreasonable.
PARTICULARS
(a)Further or in the alternative to Particular (a) to Ground 1 and Particulars (a) and (b) to Ground 2, the Authority was unreasonable in not considering or in not finding exceptional circumstances to consider the Applicant’s claim that his family were “targeted as supporters of the Liberation Tigers of Tamil Eelam (“LTTE”) militants” because of his “elder brother’s involvement and links with the LTTE”. and his claim that he had done military training with the LTTE, (IAA Decision and Reasons [4], [7])
(b)Further or in the alternative to Particular (b) to Ground 1, the Authority was unreasonable in not finding exceptional circumstances to consider the new country information in a signed statement by the Applicant received by the Authority on 11 April 2017. (IAA Decision and Reasons [8]-[9])
(c)The Authority was unreasonable not to be satisfied of the Applicant’s claim that the Sri Lankan authorities were responsible for the abduction of his brother. (IAA Decision and Reasons, [20])
(d)The Authority accepted the majority of the history claimed by the Applicant, including the matters set out in Particular (c) to Ground 1. It was therefore unreasonable not to find that there was a real chance of the Applicant suffering harm on return to Sri Lanka, especially after detention and investigation as a returning illegal emigrant and failed asylum seeker. (IAA Decision and Reasons [40]-[57])
(e)The Authority was unreasonable to reject the claim that the Sri Lankan authorities visited the Applicant’s sister in law in 2015 and questioned her about her husband, the Applicant’s brother who was abducted. (IAA Decision and Reasons [30]. [31], [34])
(f)Further or in the alternative to Particular (e) to this Ground, the Authority was unreasonable not to get further information about when the Sri Lankan authorities questioned the Applicant’s sister in law, and about the complaints which his family made about the frequent interrogations. (IAA Decision and Reasons [30], [31], [34])
(g)The Authority accepted the majority of the history claimed by the Applicant, including the matters set out in Particular (c) to Ground 1. It was therefore unreasonable to find that “there is no credible evidence that the applicant is of interest to the Sri Lankan authorities ...”. (IAA Decision and Reasons [45])
Ground 2 was abandoned by the applicant.
The evidence before the Court comprises the court book filed on behalf of the Minister on 16 August 2018 and a supplementary court book containing country information filed by the applicant on 14 October 2023.
CONSIDERATION OF APPLICANT’S GROUNDS
As can be seen from the grounds above, there is a degree of overlap in the grounds, with the applicant challenging some findings of the Authority on several bases.
In my consideration of the grounds in this judgment, I first summarise the principles relevant to the resolution of the grounds, and then address each of the findings that is impugned by the applicant.
Relevant legislation and principles
The applicant’s grounds broadly raise three types of jurisdictional error, namely, errors in the Authority’s approach to s 473DD of the Migration Act, a failure to consider all claims of the applicant and their component integers, and legal unreasonableness in the Authority’s fact finding.
Section 473DD of the Migration Act

Section 473DD of the Migration Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The term ‘new information’ is defined in s 473DC(1) of the Migration Act to mean documents or information that were not before the Minister at the time of the decision made under s 65 of the Migration Act and which the Authority considers may be relevant.
In considering whether new information provided by an applicant meets the requirements of s 473DD, the Authority is required to first consider whether the new information meets the criteria in s 473DD(b)(i) and (ii) and then, if either or both of those criteria are satisfied, take that into account as a relevant consideration in determining whether exceptional circumstances exist for the purposes of s 473DD(a): AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17) at [11] and [12] (Kiefel CJ, Gageler, Keane and Gordon JJ).
In considering whether new information is ‘credible personal information’ for the purposes of s 473DD(b)(ii) of the Migration Act, the Authority is required to consider whether the information is capable of being believed, and not whether the information is true: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [41]-[42] (Bromberg J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [62] and [75] (Mortimer and Jackson JJ). As Bromberg J explained in CSR16 at [41]-[42]:
41.In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42.The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
The requirement to consider all claims raised by an applicant and their component integers
It is well-established that the Authority is required to consider the claims expressly articulated by an applicant and their component integers, as well as claims that are not expressly articulated but which clearly emerge on the materials before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] and [60]-[61] (Black CJ, French and Selway JJ); AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18] (Collier, McKerracher and Banks-Smith JJ).
In considering the applicant’s claims, the Authority was required to ‘read, identify, understand and evaluate’ the representations made by the applicant: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).
Unreasonableness in fact finding
In advancing his grounds based on unreasonableness, the applicant relied primarily on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) and submitted that the obligation on the Authority to act reasonably extends not only to its final decision, but to the exercise of its discretions.
The Minister referred in his submissions to the summary of the relevant principles referred to at [58]-[60] in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28, where the Full Court (Allsop CJ, Griffiths and Wigney JJ) said:
58.First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); [Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh)] at [43]; [Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (Stretton)] at [4] (Allsop CJ) and [53] (Griffiths J).
59.Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
60.Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
When assessing whether the Authority’s decision is legally unreasonable, it is important to take into account the scope and purpose of the relevant statute: Li at [67] and [72] (Hayne, Kiefel and Bell JJ). The applicant referred to the High Court’s judgment in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62, and the test of a ‘real chance’ as being one that is not remote and which may be less than 50%, as being relevant to the assessment of the reasonableness of the Authority’s decision insofar as it relates to its assessment of whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa).
The Authority’s findings in relation to new information that the applicant’s brother was involved with the LTTE and that the applicant in 2008 attended mandatory LTTE training: Grounds 1(a), 3(a) and (b), 4(a)
In his statutory declaration that accompanied his protection visa application, the applicant relevantly claimed that:
(a)his family heard over the radio in 2005 that his brother was kidnapped, and his death has since been confirmed;
(b)his sister-in-law was unsure whether the CID or Sri Lankan Army (SLA) was responsible for the kidnapping;
(c)he and his family were taken to an IDP camp in 2009 and he was interrogated regularly, but did not claim to have been interrogated about his brother;
(d)when he and his siblings moved in 2011, the CID came to their home to register their family, asked about family details and were ‘particularly suspicious’ about their brother ‘as he had disappeared during the civil war’;
(e)the CID continued to visit his family on two or three occasions a month, registering their details and asking about his brother; and
(f)sometime in 2015, his sister-in-law was interrogated about his brother.
In a submission to the delegate, the applicant’s representative indicated that the applicant was ‘unable to verify whether his father and brother were targeted as a result of being directly involved in the LTTE’, but submitted that it was plausible that, as Tamil fishermen, they were imputed or perceived to have assisted the LTTE, including with the transportation of LTTE personnel.
A transcript of the applicant’s protection visa interview is not in evidence before the Court, so I am unable to identify precisely how the applicant advanced his claims for protection in his protection visa interview.
The applicant provided a statement to the Authority, in which he said, in relation to his brother’s involvement with the LTTE:
It’s already been submitted to the department that my family was targeted as supporters of LTTE Militants, being my elder brother’s involvement and links with the LTTE.
In the same statement, the applicant claimed that he had attended mandatory training with the LTTE. The applicant said (emphasis added):
During the peak of the war, the entire Northern and Eastern provinces were completely under the control of LTTE Militants. When I was a schooling boy in 2008, the LTTE militants imposed on the school authorities that young, viable male students had to attend mandatory training camps to be trained and to be of aid and assistance to the LTTE Militants. I realize now that the mandatory training camps, I attended as a school boy is considered as involvement with the LTTE Militants. This information I have overlooked to give to the Department as I did not understand at the time that my assistance I provided to the Militants could be construed to be involvement by me. I bear responsibility for this oversight and neglect that was not on purpose by an honest error.
The Authority considered this information at [4]-[7] of its reasons, where it said:
4.In the IAA statement the applicant claims, “it’s already been submitted to the department that my family was targeted as supporters of the Liberation Tigers of Tamil Eelam (LTTE) militants, being my elder brother’s involvement and links with the LTTE.” However no such claims regarding the applicant’s family, or older brother …, are contained in the referred materials from the Department. I consider this to be new information, which was not before the delegate and predates the delegate’s decision.
5.In the IAA statement the applicant also claims that in 2008, when he was a student, he attended mandatory LTTE training. This claim was not before the delegate and is new information which predates the delegate’s decision. The applicant explains that at the time of his SHEV interview he didn’t realise the significance of this information and so responded in the negative when the delegate asked him if he had ever had LTTE involvement.
6.The applicant lodged his [Safe Haven Enterprise visa (SHEV)] application with the assistance of his then representative, a registered migration agent, who assisted him to prepare his written SHEV statement, was present at his SHEV interview, and sent the delegate a post-SHEV interview written submission for his consideration. During the SHEV interview, the delegate advised him the IAA is a limited form of review and can only consider new information in exceptional circumstances. The delegate also explained how the applicant’s claims for protection would be assessed, as well as the importance of providing all his claims in the first instance.
7.During the SHEV interview the delegate asked the applicant if he or his family had ever had any contact with the LTTE, to which he replied they had not. I am not persuaded by the applicant’s explanation for not mentioning this matters earlier. The applicant has not satisfied me that this information could not have been provided to the Minister or that it is credible personal information. In the circumstances, I am also not satisfied exceptional circumstances exist to justify considering the new information.
The errors that the applicant asserts the Authority made in assessing this information are that:
(a)the Authority erred in finding that the information that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE was ‘new information’ within the meaning of s 473DC(1): ground 3(a);
(b)the Authority erred in finding that the information that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE and that the applicant had undertaken military training with the LTTE did not amount to ‘credible personal information’ for the purposes of s 473DD(b)(ii) of the Migration Act: ground 3(b);
(c)the Authority was unreasonable in not considering or in not finding exceptional circumstances to consider the applicant’s claims that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE and that the applicant had undertaken military training with the LTTE: ground 4(a); and
(d)the Authority failed to consider the applicant’s claims that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE and his claim that he had undertaken military training with the LTTE: ground 1(a).
Was the information that the applicant’s family was targeted as supporters of LTTE militants because of the applicant’s brother’s involvement and links with the LTTE correctly identified as ‘new information’?
The applicant submitted that his claim that his family was targeted as supporters of LTTE militants because of his older brother’s involvement and links with the LTTE was not new information because ‘the very essence of the Applicant’s claims was that he had repeatedly been interrogated and beaten, especially because the Sri Lankan authorities believed or suspected that his brother had been involved in the LTTE’. In oral submissions, Counsel for the applicant made a similar submission that ‘the whole basis of the application before the delegate, and before the IAA, was that the applicant experienced particular attention by the authorities, including on a number of occasions, interrogation and beating, both in the camp and then further repeated interrogation by CID after he moved to the north on the basis of their suspicion of his brother’.
I am not convinced, on the evidence before the Court, that all aspects of this characterisation of the applicant’s claims are accurate. For example, on the applicant’s claims as set out in his statutory declaration, there is no mention of being interrogated about his brother while at the IDP camp. In that statutory declaration, when referring to the questioning of the applicant and his siblings by the CID in 2011, the applicant claimed that they were particularly interested in his brother because ‘he had disappeared during the civil war’, rather than because of any suspected involvement with the LTTE. In his submission to the Department, the applicant submitted that he would face the requisite risk of harm in the reasonably foreseeable future because it is ‘plausible’ that his brother and father would be imputed to have assisted the LTTE because they are Tamil fishermen, but did not submit that the reason for the applicant’s past interrogations were because his brother had any real or perceived involvement with the LTTE.
In any event, I accept the Minister’s submission that the claim advanced by the applicant in the statement to the Authority was similar to, but critically distinct from, the information provided to the delegate and the Authority was correct to identify it as new information.
In particular, the ‘new information’ identified by the Authority included that the applicant’s brother had actual involvement and links with the LTTE. There was no claim before the delegate that the applicant’s brother was involved with or linked to the LTTE and the Authority identified at [18] of its reasons that the applicant told the delegate that, as far as he knew, his brother was not involved with the LTTE.
The information that the applicant’s family was ‘targeted as supporters of LTTE Militants’ was also similar to but different from the information before the delegate. Like in the case of the applicant, the questioning of the applicant’s family in relation to his brother in 2011 was claimed, before the delegate, to be because the brother had disappeared during the civil war, not because the siblings were perceived to be supporters of LTTE militants. The applicant gave no reason in his statutory declaration for his sister-in-law being questioned about his brother in 2015.
The applicant has not established jurisdictional error in the Authority decision as a result of the Authority’s characterisation of his claim that his family was targeted as supporters of LTTE militants because of the applicant’s brother’s involvement with and links to the LTTE as new information.
Did the Authority err in finding that the information that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE and that the applicant had undertaken military training with the LTTE did not amount to ‘credible personal information’ for the purposes of s 473DD(b)(ii) of the Migration Act?
The applicant submitted that this information was ‘credible (in the sense that it was not inherently unbelievable), ‘personal’ (being information that was about the applicant and his family members) and that had it been known, it may have affected consideration of the applicant’s claims.
In his reply submissions, Counsel for the applicant submitted that the Authority manifestly applied the filter in s 473DD(b), but did so incorrectly, because it simply referred in passing to not being satisfied that the information was credible personal information, without making any detailed finding beyond that. Counsel for the applicant submitted that the Authority did not make a finding that the information was capable of being believed and simply rehearsed the phrase used in the legislation.
The Minister submitted that the applicant’s claim that his brother was involved with the LTTE contradicted his earlier evidence and that the Authority’s reasons disclose that it considered the new information to be a recent invention and not credible on that basis. The Minister submitted that this approach was open to the Authority, relying on ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 (ARO17) at [62]-[64] (Wigney J).
On a fair view of the Authority’s reasons, in considering whether the new information was credible, the Authority had regard to the explanations given to the applicant about needing to provide details of his claims at the first instance, the assistance that he had in preparing his claims and that he had been expressly asked by the delegate if he or his family had ever had contact with the LTTE, to which the applicant replied they had not. In other words, the Authority highlighted that, in response to a question by the delegate, the applicant gave evidence that directly contradicted his new claims that his brother was involved in the LTTE and that the applicant had undertaken training with the LTTE. I accept that this may appropriately be characterised as a finding that the new information was a recent concoction and therefore not credible, because the applicant had the opportunity to provide the information previously and instead provided information that was contrary to the new information. Reasoning to a similar effect was found not to involve error in ARO17 at [62] and [64].

The Authority’s reasons are brief but should be read with the understanding that the Authority’s obligation to give reasons for its decision in s 473EA of the Migration Act does not require it to give reasons for procedural decisions, such as the application of s 473DD: see BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
There is nothing in the Authority’s reasons that indicates that the Authority misunderstood its task in assessing whether the new information was credible. I do not make any inference, contrary to the applicant’s submissions, that the Authority’s repetition of the phrase ‘credible personal information’ as it appears in s 473DD(b)(ii) of the Migration Act shows that it misunderstood or misapplied that phrase. The Authority is not required to expressly state that new information is ‘not capable of being believed’ to avoid the error in CSR16. Rather, the Authority’s reasons need to be assessed fairly. There is nothing in the Authority’s reasons that indicates that it assessed whether the new information was ‘true’ as opposed to ‘capable of being believed’. While the applicant may disagree with the Authority’s assessment, that does not of itself show that the Authority misunderstood its statutory task or that it’s finding was unreasonable.
There is no jurisdictional error in the Authority decision insofar as it relates to the application of s 473DD(b)(ii) of the Migration Act.
Did the Authority make an unreasonable finding in finding that there were not exceptional circumstances to justify considering the applicant’s new information that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE and that the applicant had undertaken military training with the LTTE?
Given my findings above, detailed consideration of this aspect of the applicant’s ground is somewhat obsolete. I have found that there was no error in the Authority’s approach to s 473DD(b)(ii) and the applicant has not challenged the Authority’s findings for the purposes of s 473DD(b)(i) of the Migration Act. As can be seen from the text of s 473DD, where an applicant provides new information to the Authority, the Authority must not consider that new information unless it is satisfied of two cumulative requirements: the requirement in s 473DD(a) that there be exceptional circumstances to justify considering the new information and one of the alternative criteria in s 473DD(b). As the High Court explained in AUS17 at [11] (Kiefel CJ, Gageler, Keane and Gordon JJ), if the applicant does not satisfy the Authority that the requirements of either s 473DD(b)(i) or (ii) are met, there is no need for the Authority to proceed to consider s 473DD(a). Accordingly, even if the Authority did make an unreasonable finding for the purposes of s 473DD(a), that error would not be material: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30]-[31] (Kiefel CJ; Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ).
In any event, the Authority’s reasons show an intelligible justification for finding that there were no exceptional circumstances to justify considering the new information. Again, the applicant’s disagreement with the Authority decision does not demonstrate legal unreasonableness: it was a matter about which reasonable minds may differ. Legal unreasonableness is not established.
Did the Authority err by failing to consider the applicant’s claims that his family was targeted as supporters of LTTE militants because of his elder brother’s involvement and links with the LTTE and his claim that he had undertaken military training with the LTTE?
Given that the Authority found that the requirements of s 473DD were not met, these claims were not before the Authority and the Authority was not required to consider them in the substantive part of its review.
Authority’s findings in relation to country information provided by the applicant that was new information: grounds 1(b), 3(c) and (d), 4(b)
The applicant provided with his statement to the Authority a number of news reports and country information reports. The Authority identified that some of these were before the delegate and some comprised new information. The articles or reports that Counsel for the applicant identified at the hearing as being relevant to the judicial review application are:
(a)an article from the website titled ‘Maithripala Sirisena And Sri Lanka’s False Dawn’, dated 3 February 2017; and
(b)an article from the website titled ‘Diaspora group claims Sri Lanka still unsafe for Tamils to return’, dated 18 February 2017.
The Authority considered whether these reports met the requirements of s 473DD at [8]-[9] of its reasons, where it said:
8.The IAA statement also contains various sources of country information some of which were before the delegate, as well as others which were not and are new information. All the new information is publicly available country information which appears to predate the delegate’s decision.
9.At the time of the applicant’s SHEV interview, he had been residing in Australia for four years. The applicant lodged his SHEV application with the assistance of his then representative, who also sent the delegate a post-SHEV interview written submission for his consideration, which included other sources of country information relevant to the applicant’s claims. I am not satisfied exceptional circumstances exist to justify considering the new country information. Nor has the applicant satisfied me as to either of the matters in s.473DD(b).
The jurisdictional errors asserted by the applicant in relation to these paragraphs of the Authority’s reasons are that:
(a)the Authority erred by not being satisfied that the new information ‘was not, and could not have been, provided to the Minister before the Minister made the decision under section 65’ in circumstances where the new information was issued only a short time before the delegate’s decision: ground 3(c);
(b)the Authority erred by not finding that there were exceptional circumstances to justify considering the new information: ground 3(d);
(c)the Authority was unreasonable in not finding that there were exceptional circumstances to justify considering the new information: ground 4(b); and
(d)the Authority erred by not considering all relevant considerations, because it did not consider the new country information attached to the applicant’s statement: ground 1(b).
Did the Authority err in its application of s 473DD(b)(i) of the Migration Act?
In his written submissions, the applicant submitted that:
(a)given that some of the information was published only shortly before the delegate’s decision on 8 March 2017, as a practical matter, there was an issue which was not considered by the Authority as to whether the new information was not, and could not have been, provided before the delegate’s decision; and
(b)the applicant engaged a different representative before the Authority, so his new representative could not have provided the new information to the delegate.
In oral submissions, Counsel for the applicant submitted that, in construing s 473DD(b)(i) of the Migration Act, the Authority should take a straightforward and common-sense approach, and should have found in all the circumstances that it was not possible for the material to have been put before the Minister. If one simply looks at the date of the new information, there may be absurd and unjust results if, for example, an applicant was ill prior to the delegate’s decision. Counsel for the applicant submitted that it was not open to the Authority simply to rely on the date of the new information.
In response, the Minister submitted that notwithstanding that the new country information was published shortly before the delegate’s decision, it was open to the Authority to find that it could have been provided earlier and that there were not exceptional circumstances to justify considering the new information. In advancing this submission, the Minister relied on the judgment in DOJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 588 at [62]-[72]. In that case, Judge Given considered a submission which was advanced by the same Counsel who appeared for the applicant in the present case and which is similar to his submission in the present case, and said at [65]-[68]:
65.As noted at [13] above, the applicant submitted various documents to the Authority. The delegate’s decision was made on 18 May 2017, being 2 days after the [International Crisis Group (ICG)] report is dated and approximately 6 weeks before the [Transnational Government of Tamil Eelam (TGTE)] statement was released.
66.The Authority was correct to observe (CB 238 at [5]) as a matter of fact that only one item of the material submitted for the applicant with his submission to the Authority (being the TGTE statement), post-dated the delegate’s decision.
67.In relation to ground 1(a) as it pertains to the ICG report the applicant, in essence, urges upon the Court an interpretation of s 473DD(b)(i) which is not available. The applicant seeks to add a subjectively qualitative assessment of diligence to whether a document “could not have been, provided” to the delegate. This is implicit within the submission that while the ICG report technically pre-dated the delegate’s decision, it would not have been realistic to expect that in that limited time the applicant could have become aware of the report and provided it to the delegate. It is open to infer that if the legislature intended such a qualification, it would have included this within the text of s 473DD(b)(i) of the Act.
68.Whether the document could or could not have been provided to the Authority was a finding of fact for it to make. The Authority in this case did so by reason of both the date of the document and the fact that it was publicly available at the time. There was a clear basis for its factual finding and that basis was open to the Authority on the material before it.
I do not accept that the Authority misconstrued or misapplied s 473DD(b)(i) of the Migration Act. The two articles were published on 3 February 2017 and 18 February 2017 respectively, and it was open to the Authority to find that they both pre-dated the delegate’s decision, which was made on 8 March 2017. Whether the new information could have been provided to the Minister prior to the decision under s 65 of the Migration Act was a matter for the Authority as part of its fact-finding function. The Authority’s finding was that the applicant had not satisfied the Authority as to the matter in s 473DD(b)(i) of the Migration Act. Again, this finding was open to the Authority on the evidence before it.
I do not accept that anything turns on the applicant having a different representative before the Authority to the representative that he had before the delegate. In assessing whether the requirements of s 473DD(b)(i) were met, it was relevant for the Authority to consider whether the new information ‘could not have been given’ to the Minister prior to the s 65 decision. Nothing in the wording of s 473DD(b)(i) requires consideration of whether the new information could have been given by a particular person or representative.
Likewise, the applicant’s submission that in some cases, looking only at whether new information pre-dates the delegate’s decision might lead to an absurd or unjust result does not establish jurisdictional error in this case. The Authority did not proceed on the basis that the requirements of s 473DD(b)(i) could never be met if the new information pre-dated the delegate’s decision. Rather, the Authority found that, in the circumstances of this case, the new information pre-dated the delegate’s decision and the applicant had not satisfied the Authority of the matters in s 473DD(b)(i) of the Migration Act. As stated above, it was open to the Authority to take into account that the articles pre-dated the delegate’s decision. Further, it is unsurprising that the Authority found that the applicant had not satisfied it of the matters in s 473DD(b) in circumstances where the applicant did not offer any explanation to the Authority as to why it should find that s 473DD(b) was satisfied. In an appropriate case, if an applicant is unable to provide newly published information to the delegate because of illness or some other reason, as in the example given by Counsel for the applicant, it will be open to the applicant to explain that to the Authority and the Authority will be able to take it into account. No such considerations arose in the present case.
There is no jurisdictional error arising from the Authority’s construction and application of s 473DD(b)(i) of the Migration Act.
Did the Authority make a finding that was unreasonable, or which otherwise amounted to jurisdictional error, in finding that s 473DD(a) was not satisfied in respect of the new country information?
By ground 4(b) the applicant asserts that it was unreasonable for the Authority to find that there were no exceptional circumstances to justify considering the new country information and by ground 3(d), the applicant simply asserted that the Authority erred by making that finding. Considered in context, the asserted error in ground 3(d) appears to be that the Authority misinterpreted or misapplied s 473DD(a) of the Migration Act. It is convenient to consider the issues raised by these two grounds or particulars together.
In his written submissions, the applicant submitted that Authority erred in finding that the requirements of s 473DD(a) were not met, because the two reports were issued only a short time before the delegate’s decision and were important, going to a critical issue for a man who had been found by the Authority repeatedly to have been assaulted in interrogations and whom the Authority accepted would be detained and questioned on return. For the same reasons, the applicant submitted that the finding was unreasonable.
Again, as was the case with the new information about the past involvement of the applicant and his brother with the LTTE, consideration of this issue has become somewhat obsolete given that I rejected the applicant’s submissions asserting error in the approach to s 473DD(b)(i) and, having found that the requirements of s 473DD(b) were not met, the Authority was not required to consider whether the requirements of s 473DD(a) of the Migration Act were met. Any error in its approach to s 473DD(a) will not, in the circumstances of the present case, be material and therefore cannot amount to jurisdictional error.
In any event, the applicant has not established that the Authority misapplied s 473DD(a) or made an unreasonable finding. The applicant appears to believe that the Authority should have made a different finding, but that, without more, does not establish misapplication of the provision or unreasonableness. Again, the Authority’s findings were open to it on the evidence before it and the Authority gave an intelligible justification for its decision. No jurisdictional error is established.
Did the Authority err by failing to consider all relevant considerations and evidence, by not considering the new country information?
Again, given that the Authority found that the requirements of s 473DD of the Migration Act were not met in respect of the new country information, that information was not before the Authority for the purposes of the substantive stage of the review and the Authority was not required to consider the new country information reports. Indeed, pursuant to s 473DD, the Authority was prohibited from considering the new information.
The Authority’s consideration, for the purposes of s 473DD of the Migration Act, of the new country information provided by the applicant does not establish jurisdictional error in the Authority decision.
Whether the Authority failed to consider whether, because of the applicant’s cumulative experiences of past harm, he would be more vulnerable to serious harm by being assaulted or by being in fear of assault, while undergoing detention and investigation on his return to Sri Lanka: ground 1(c)
The applicant submitted that the Authority accepted that his father was killed by the Sri Lankan Navy, his mother died of illness related to injuries she received in the civil war, his brother was abducted in 2005 and is presumed dead, the applicant was detained, regularly questioned and beaten and witnessed many atrocities, but the Authority did not consider whether, because of his experience of this cumulative and serious past harm, the applicant would be more vulnerable to serious harm by being assaulted or by being in fear of assault, while undergoing detention and investigation upon his return to Sri Lanka. The applicant submitted that the Authority considered the conditions of detention that would be faced by the applicant but did not consider this as an experience informed by the past, repeated experiences of interrogation and beating. In oral submissions, Counsel for the applicant submitted that the fact that the Authority had accepted the applicant had been repeatedly interrogated and assaulted meant that, in considering he would undergo investigations and potentially detention and prison for a short time, the question was raised as to whether the applicant would be more vulnerable in that process. The Authority’s findings did not take into account the applicant’s claim to vulnerability. Counsel for the applicant also submitted that it is relevant that Australia’s criminal law takes account of the fact that an assault may be occasioned by putting someone in fear, whether they are physically injured or not.
The Minister submitted that the applicant did not make any express claim that he had a particular vulnerability and, to the extent that it might be said to arise from the applicant’s claims more generally, the Authority considered those matters and concluded that the applicant was not of interest to the authorities and would not suffer significant harm if detained. The Minister submitted that the applicant’s submissions seek impermissible merits review and should be rejected.
I do not accept that the error asserted by the applicant is established. The Authority was clearly aware of the applicant’s claims to have been harmed in the past, having considered and made findings in relation to each of those claims. The Authority also clearly considered the applicant’s claim that he would face harm upon his return to Sri Lanka as a result of departing Sri Lanka in contravention of the Immigrants and Emigrants Act and as a failed asylum seeker. The applicant did not claim that he had any specific vulnerabilities that would make him more susceptible to harm during any brief period of detention upon his return and this cannot be inferred from the applicant’s expressions of subjective fear as they appear in his statement. I do not accept that the applicant’s past experiences gave rise to any claim that clearly emerged on the materials before the Authority to the effect that his past experiences placed him at heightened risk of facing serious and significant harm while in detention or prison for a short period upon his return to Sri Lanka.
I do not accept Counsel for the applicant’s submission that it is relevant that a threat can constitute assault in Australian criminal law. In this regard, the relevant question for the Authority, had the claim asserted by the applicant clearly emerged from the materials, would have been whether the treatment faced by the applicant would amount to serious harm or significant harm, as those terms are defined in ss 5J(5) and 36(2A) of the Migration Act respectively. The applicant did not in his submissions to the Court address why the content of Australian criminal law is relevant to this question.

Ground 1, particular (c) does not establish jurisdictional error.
Whether the Authority failed to consider whether the applicant while in prison or detention may suffer serious harm by assault or torture, because of the general culture of violence and torture of those in detention or prison: ground 1(d)
The applicant acknowledged in his written submissions that the Authority referred to information from the Department of Foreign Affairs and Trade (DFAT) at [42] of its reasons. In this paragraph the Authority said (footnote omitted, emphasis added):
I note DFAT assesses the risk of mistreatment for the majority of returning asylum seekers to be low and the country information before me does not support a finding that the applicant will be imputed with an anti-Sri Lankan government political opinion simply because he spent a significant period of time in Australia, a Tamil diaspora country. I have found the applicant is not of any interest to the authorities, including because of his family connections; and overall I am not satisfied that the applicant faces a real chance of harm on account of him having sought asylum in Australia.
However, the applicant submitted that the Authority failed to consider whether, while in prison or detention, he may suffer serious harm by assault or torture because of the general culture of violence and torture of those in detention or prison. To this end, the applicant set out in his submissions extensive extracts of the DFAT country information report on Sri Lanka published in January 2017 and emphasised the following parts of that report:
TORTURE
4.12A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).
4.13 These reports include:
‧ International Truth and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015 ‧
ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009- 2015
‧ Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009
‧ Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees.
The 2016 ITJP report cited 20 cases of torture in 2015. FFT’s report cited eight torture cases in 2015. DFAT notes that verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum. However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.
….
4.15DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
4.17… Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights…..
4.18DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
4.19DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.
4.20Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.
Torture and mistreatment of returnees
4.21DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased. (DFAT report, January 2017, emphasis added.)
The applicant submitted that the Authority did not engage with this material or other reports before it that referred to torture and which suggested that there was an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody and even for minor offences. Counsel for the applicant submitted that the applicant’s application demanded more by way of consideration and the Authority did not consider the country information in the way that it was required to do so.
The Minister submitted that the Authority identified and considered the applicant’s claim that he would face harm in prison as a returned failed asylum seeker and, relying on country information, did not accept the claim. The Minister submitted that the applicant’s submissions impermissibly invite the Court to assess the degree or quality of the Authority’s consideration of the claim. In oral submissions, Counsel for the Minister submitted that the Authority referred to the relevant DFAT report and made a finding about the likely consequences of the applicant’s return to Sri Lanka. The Authority’s conclusion was open to it and it is not to the point that different decision-makers may have reached different decisions. The assessment of country information and the conclusions that the Authority drew from it were matters for the Authority, as long as the Authority remained within its area of decisional freedom.
I do not accept that the Authority failed to consider whether the applicant would face a real chance of serious harm from torture whilst detained briefly at the airport or in prison following his return to Sri Lanka, or that its consideration of the country information was inadequate.
The Authority was plainly aware of the information in the DFAT report, having cited parts of that report that it considered to be most relevant to its decision. The information that DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low was taken directly from the report and is consistent with the gist of the information overall. In setting out its reasons, the Authority was not required to refer in detail to the information in the DFAT report or to expressly identify the information relied on by DFAT, or contrary information acknowledged by DFAT, in reaching its assessment. The Authority’s finding that the risk of torture or mistreatment is low, based on the DFAT report, is not a finding that torture never occurs, just as DFAT did not assess that torture never occurs.
The Authority considered the particular circumstances of the applicant, including that there was no credible evidence that he was of interest to the Sri Lankan authorities and that he would not face greater scrutiny or penalty upon return than other illegal departees: see [45] of the Authority’s reasons. The Authority also found at [55] that the treatment and conditions the applicant could expect to face if he is taken to prison for a few days would not amount to torture and the Authority was not satisfied that there was any intention to inflict pain or suffering or cause extreme humiliation to the applicant.
The Authority considered the claim advanced by the applicant and, although its reasons are briefer than they might have been, the reasons do not disclose jurisdictional error.
The Authority’s rejection of the applicant’s claim that the Sri Lankan authorities were responsible for the abduction of his brother: ground 4(c)
In relation to the applicant’s claim that his brother was abducted in 2005, the Authority said at [18]-[20] of its reasons (footnote omitted):
18.I accept in 2005 [the applicant’s brother], who was a fisherman and living with his wife …, was abducted. During the SHEV interview the applicant returned to the subject of [his brother’s] death regularly as one of his primary reasons for leaving Sri Lanka and why he fears going back. I accept that the applicant …does not have much information about the circumstances of the abduction. I accept that the applicant and the rest of his family first heard of [his brother’s] abduction on the radio. I accept the applicant’s evidence to the delegate that as far as he knows [his brother] was not involved with the LTTE and, at the time of his abduction, [his brother] was on his way to hospital because he was ill with a fever.
19.I accept [the applicant’s brother’s] wife believed either the CID or SLA were responsible and reported the incident to a human rights organisation, as well as the police, but that nothing eventuated from this. I accept the applicant’s written claim that the police may not have helped because his sister-in-law is Tamil. The applicant has provided [his brother’s] death certificate with his SHEV application, which states as “over one year has elapsed it is deemed he is dead”. I accept the applicant’s evidence that his family were only able to obtain this certificate with the assistance of the United National High Commission for Refugees (UNHCR) some years after the event.
20.The applicant has not given any reason as to why he believes the CID or SLA were responsible for the disappearance of [his brother]. I note in the applicant’s written SHEV statement he claims that there were many ‘white van kidnappings’ during this period, and that there were numerous news reports about abductions in the area. Country information before the delegate also indicates that there was a high level of insecurity and violence in parts of Jaffna district during the civil war, related to both the ongoing civil conflict, as well as criminal activity. The LTTE, the Sri Lankan authorities and associated paramilitaries were all active in the area, and regularly targeted their rivals, as well as the civilian population, for kidnapping, abduction and extortion. On the evidence regarding the circumstances of [the applicant’s brother’s] abduction, and the available country information, I am not satisfied that the Sri Lankan authorities were responsible, as the applicant has claimed.
The applicant submitted that it was legally unreasonable for the Authority to reject his claim that the authorities were responsible for his brother’s abduction, precisely for the reasons given by the Authority, namely, the prevalence of ‘white van’ abductions, the country information about insecurity, the continued questioning of the applicant by the authorities about his brother and that the Authority accepted that the applicant’s brother was abducted. Counsel for the applicant submitted that it was simply not reasonable for the Authority to find that the applicant’s brother was abducted, but not by the Sri Lankan authorities.
The Minister submitted that the Authority gave reasons for its finding, including that the area was insecure and that a range of groups were operating in the area, including the LTTE and paramilitaries. The Minister submitted that the Authority’s finding was open to it for the reasons it gave.
There is nothing legally unreasonable in the Authority’s rejection of the applicant’s claim that the Sri Lankan authorities were responsible for his brother’s abduction. The Authority took into account the lack of direct knowledge of the applicant, the absence of any reasons given by the applicant to explain his belief that the Sri Lankan authorities were involved and country information which suggested that a number of actors may have been responsible for the abduction. The Authority gave an intelligible justification for rejecting the applicant’s claim that the Sri Lankan authorities were responsible for his brother’s abduction, and the finding was open to it on the evidence before it. No jurisdictional error is established.
The Authority’s findings that there was not a real chance of the applicant suffering harm on return to Sri Lanka and that he was not of interest to the authorities: grounds 4(d), 4(g)
By ground 4, particular (d), the applicant impugns the Authority’s overall conclusion that he would not face a real chance of serious harm on return to Sri Lanka and by ground 4, particular (g), the applicant impugns the Authority’s finding that the applicant was not of interest to the Sri Lankan authorities. In both cases, the findings are impugned on the basis that they are legally unreasonable, taking into account the Authority’s acceptance of aspects of the applicant’s claims relating to his past treatment, including that he had been interrogated and beaten in relation to his brother, and its finding that the applicant would be detained and questioned on his return to Sri Lanka for breaching the Immigrants and Emigrants Act.
In relation to the Authority’s finding that the applicant did not face a real chance of serious harm, the applicant also referred to the information before the Authority about continuing reports of torture and submitted that it was legally unreasonable not to find that there was a real chance, even if that chance was a small chance, of the applicant suffering serious harm on return to Sri Lanka, especially after detention and investigation as a returning illegal emigrant and failed asylum seeker. I have addressed the Authority’s treatment of country information in relation to torture above.
The Minister’s submission in response to ground 4, particular (d), is that the applicant seeks to impermissibly attack the merits of the Authority decision.
I do not accept that the Authority’s finding that the applicant does not face a real chance of serious harm demonstrates any legal unreasonableness. The Authority considered the applicant’s individual circumstances and made findings that were open to it on the evidence before it. That the Authority accepted that the applicant faced some harm in the past, such as being interrogated and beaten, does not necessarily lead to a conclusion that the applicant faces a real chance of serious harm in the reasonably foreseeable future, particularly in the light of the country information before the Authority about the improved circumstances in Sri Lanka.
I do not accept that the information about torture that the applicant relies on made it unreasonable for the Authority to find that the applicant did not face the requisite chance of harm. The Authority relied on country information that the risk of mistreatment for the majority of returning asylum seekers was low and, for reasons discussed above, it was open to the Authority to rely on this information. That the country information suggested that the risk of mistreatment was ‘low’ rather than non-existent did not compel a conclusion that the applicant would face a real chance of serious harm. While in some cases, a relatively low chance of harm occurring can still amount to a real chance, being one that is not remote, not every low chance of harm will amount to a real chance. It was a matter for the Authority to determine, as part of its fact-finding function, whether the applicant faced a chance of serious harm that was real and not remote. There is nothing in the Authority’s reasons that suggests that the Authority misunderstood the relevant test or otherwise made findings in this regard that were not reasonably open to it.
The Authority’s finding that the applicant was not of interest to the Sri Lankan authorities that is impugned by the applicant in ground 4 particular (g) was made at [45] of its reasons, where it said:
With reference to the applicant’s particular circumstances, there is no credible evidence that the applicant is of interest to the Sri Lankan authorities, or that he was anything other than an ordinary illegal departee from Sri Lanka. Accordingly, while I accept there is a real chance the applicant will be questioned, fined, and held briefly as part of the re-entry process, I do not accept he would face greater scrutiny or penalty upon return than other illegal departees. On the evidence before me I am not satisfied that any routine questioning at the airport upon return, which all illegal departees undergo, amounts to serious harm.
The Authority’s finding that there was no credible evidence that the applicant is of interest to the Sri Lankan authorities needs to be considered in the light of the findings expressed earlier in its reasons. These reasons include that:
(a)the applicant gave evidence that he was never arrested, charged with an offence or sent to a rehabilitation camp for former LTTE members or supporters, and the Authority found that the applicant’s release from the IDP camp in 2010 indicated he was not a person of interest to the Sri Lankan authorities: [23];
(b)the applicant never presented any evidence that his occupation was ever of particular interest to the authorities on the occasions they questioned him, and country information does not indicate that the authorities in Sri Lanka are targeting Tamil fishermen on the basis of any pro-LTTE imputed opinion in the post-war era: [27];
(c)the Authority accepted the applicant’s evidence that aside from the interrogations and beatings while at the IDP camp and after he moved, nothing else happened to him from 2010 until his departure in August 2012: [28]; and
(d)the Authority concluded, in relation to the risk of harm from the applicant’s overall circumstances, at [40]:
I am not satisfied that the Sri Lankan authorities will impute the applicant to hold a pro-LTTE or anti-Sri Lankan government political opinion because of his status as a young Tamil male, his origins in the north, his father and [elder brother], his family’s interactions with human rights organisations or the applicant’s work as a fisherman. Based on the applicant’s personal circumstances, and the greatly improved country information, I am not satisfied the Sri Lankan authorities will have an adverse interest in him because of their previous interactions with him or his family. Overall I find the applicant does not face a real chance of harm for any of these reasons, should he return to Sri Lanka.

Read fairly, and in the context of its reasons as a whole, the Authority’s finding that there was no credible evidence that the applicant would be of adverse interest to the authorities in Sri Lanka was open to it for the reasons that it gave.
The applicant has not established that the Authority’s findings that he did not face a real chance of serious harm or that there was no credible evidence to find that he would be of interest to the authorities were legally unreasonable.
The Authority’s rejection of the applicant’s claim that the Sri Lankan authorities visited his sister-in-law in 2015 and questioned her and her husband about the applicant’s brother who was abducted: grounds 4(e) and 4(f)
The applicant claimed in his statutory declaration that accompanied his visa application:
Sometime in 2015, my sister-in-law was interrogated about my brother… My sister-in-law was so frightened after this incident, she would not provide me further details or who interrogated her as she believed her phone was being monitored.
He also claimed:
My sister-in-law attempted to obtain assistance from the human rights organisation in Jaffna and the police regarding the abduction of my brother, however they were unwilling to provide assistance.
The Authority addressed these claims at [30] and [34] of its reasons, where it said:
30.The delegate asked the applicant to confirm whether the authorities had questioned his sister-in-law in 2015, as he had indicated in his written SHEV statement, or more recently; however his answer was unclear. I note [the applicant’s brother] went missing in 2005 and the applicant has advised the delegate that [his brother] was not involved with the LTTE. Given the civil war ended in 2009, I do [not] find it credible that in 2015 the authorities would still have an interest in [his brother], and I do not accept this claim. I do not accept the Sri Lankan authorities are monitoring the applicant’s siblings, or his sister-in-law, in any way and that this prevents them telling him what is really going on, as he suggested to the delegate.
…
34.In the applicant’s written SHEV statement he has claimed that his sister in law reported the disappearance of [his brother] to a human rights organisation and that some years later the UNHCR assisted her to obtain a death certificate. During the SHEV interview the applicant also made reference to his sister-in-law and family making complaints about the frequent interrogations the authorities subjected them to, regarding [his brother]. The applicant has not specified who they complained to, or claimed that he fears harm on this basis. For the reasons discussed above, I am not satisfied the authorities are monitoring the applicant’s sister-in-law or family.
The applicant makes two complaints about these findings. First, the applicant asserts that the finding that the authorities did not visit his sister-in-law in 2015 and question her about the applicant’s brother was legally unreasonable: ground 4(e). Second, the applicant asserts that the Authority acted unreasonably in not exercising its discretion in s 473DC of the Migration Act to get new information from the applicant about whether the Sri Lankan authorities questioned the applicant’s sister-in-law, and about the complaints that his family made about repeated interrogations: ground 4(f).
The applicant submitted that the Authority’s rejection of the claim that his sister-in-law had been questioned about the applicant’s brother in 2015 was unreasonable because it had no logically probative basis. The applicant submitted that the finding is in stark contrast to the Authority accepting that the applicant had been repeatedly questioned about his brother and beaten, and contrary to the general lack of credibility concerns identified by the Authority.
The Minister submitted that the Authority’s reasons that:
(a)the civil war ended in 2009;
(b)the applicant’s brother was not involved with the LTTE;
(c)merely being a Tamil in a former LTTE controlled areas is not a sufficiently high-risk profile to warrant protection; and
(d)the applicant’s evidence was vague,
provide a reasonable basis to reject the applicant’s claim.
The matter referred to in subparagraph (c) in the paragraph immediately above was referred to at [31] of the Authority’s reasons and it is not clear from the Authority’s reasons that that formed part of the reasoning for the finding at [30]. However, I otherwise accept the Minister’s submissions. The Authority gave a logical and plausible justification for rejecting the applicant’s claim regarding the questioning of his sister-in-law and the Authority’s reasons clearly explain why it rejected this claim, despite accepting other claims advanced by the applicant. The acceptance of the applicant’s earlier accounts of interrogation, based on his direct evidence and in the context of the country situation in Sri Lanka only two years after the end of the civil war, does not mean that it was legally unreasonable for the Authority to reject this claim that his sister-in-law was interrogated again some four years later.
In relation to his complaint that it was unreasonable for the Authority not to exercise its discretion in s 473DC of the Migration Act to get new information, the applicant submitted in writing that ‘the Authority was unreasonable not to get further information about when the Sri Lankan authorities questioned the Applicant’s sister in law, and about the complaints which his family made about the frequent interrogations’. This does not explain why, given the statutory regime established by Part 7AA of the Migration Act, the particular circumstances of this case made it unreasonable for the Authority not to exercise its discretion to get new information from the applicant. The oral submissions by Counsel for the applicant do not provide the relevant detail.
The submissions advanced by the applicant therefore do not establish the jurisdictional error asserted.
In any event, I accept the submissions of the Minster in relation to this issue. The Minister referred to examples of cases where the courts have found that the Authority acted unreasonably in not exercising, or not considering the exercise of, the discretion in s 473DC, and submitted that this case did not share the key features of those successful cases. In particular, the Minister submitted that:
(a)there was no ‘informational gap’ that prevented the Authority from completing its task: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17);
(b)there was no informational gap resulting from any new dispositive issue arising before the Authority for the first time: see Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210; and
(c)this is not a matter in which the Authority departed from a favourable credibility finding made by the delegate: see ABT17 and DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43.
I remain mindful that each case must be assessed on its own facts and there may be other circumstances, not addressed in the cases cited by the Minister, in which the Authority’s failure to get new information may be unreasonable. However, the cases cited by the Minister do provide a useful guide as to the types of circumstances in which it may be unreasonable for the Authority not to exercise its discretion to get new information. There is no particular feature of the present case that causes me to find that the Authority acted unreasonably in not getting new information from the applicant. Further, I accept the Minister’s submission that it is a matter for the applicant to provide sufficient detail and evidence to establish his claims for protection (see s 5AAA of the Migration Act), and that the Authority did not have any obligation to assist the applicant to advance his best possible case.
The Authority’s failure to exercise its discretion in s 473DC of the Migration Act was not unreasonable in the circumstances of this case and does not give rise to jurisdictional error.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. In these circumstances, the application for judicial review must be dismissed.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 15 March 2024

File number:	MLG 2489 of 2017
Judgment of:	JUDGE LADHAMS
Date of judgment:	15 March 2024
Catchwords:	MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority correctly identified information provided by applicant as new information – whether Authority erred in its consideration of whether new information provided by applicant met the requirements of s 473DD of the Migration Act 1958 (Cth) – whether Authority considered all the applicant’s claims for protection and their component integers – whether Authority made findings which were legally unreasonable – whether Authority acted unreasonably in failing to exercise discretion in s 473DC of the Migration Act 1958 (Cth) to get new information – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth) s 5AAA, 5AA, 36, 65, 473DC, 473DD, 473EA, 476, 477
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 DOJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 588 DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division:	Division 2 General Federal Law
Number of paragraphs:	112
Date of hearing:	3 November 2023
Place:	Perth
Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	Ambi Associates
Counsel for the First Respondent:	Mr T Lettenmaier
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore Lawyers

MLG 2489 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FBP17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	15 MARCH 2024