FBR18 v Minister for Home Affairs - [2019] FCCA 963

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBR18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 963

Catchwords:
MIGRATION – Immigration Assessment Authority.
PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the findings of the Immigration Assessment Authority appear to be open to it – whether the Immigration Assessment Authority considered new information in accordance with the legislation – no arguable case for the relief claimed – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

AYL15 v Minister for Immigration and Border Protection [2018] FCA 894

CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

AOV18 v Minister for Home Affairs [2018] FCA 1871

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

EXV17 v Minister for Home Affairs [2018] FCA 1780

ADN18 v Minister for Home Affairs [2018] FCA 1677

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

BEC17 v Minister for Immigration and Border Protection [2018] FCA 1884

CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

BMP17 v Minister for Home Affairs [2019] FCA 112

Applicant:

FBR18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2770 of 2018

Judgment of:

Judge Emmett

Hearing date:

9 April 2019

Date of Last Submission:

9 April 2019

Delivered at:

Sydney

Delivered on:

9 April 2019

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

Mr Aaron Moss
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2770 of 2018

FBR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By application, filed on 28 September 2018, the applicant sought judicial review of a decision of the Immigration Assessment Authority dated 27 August 2018 (“the Authority”) which affirmed a decision of a delegate of first respondent (“the Delegate”), dated 16 March 2018, refusing the applicant a Safe Haven Enterprise Visa.
Under the heading “Grounds of Application” in the initiating application, the applicant stated as follows:
“Ground 1 - I believe the decision is affected with legal error
Particulars
1. More details will be provided once court book is prepared.”
On 18 October 2018, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application and any further evidence by 13 December 2018.
On 18 October 2018, the matter, was stood over for call-over on 29 April 2020 before me. The directions made also stated that the first respondent has leave to return the matter to the Court’s list for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on three days’ notice to the applicant after 14 February 2019. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language at that directions hearing.
On 15 November 2018, the matter was relisted before me for the purpose of extending the timetable for the filing of a bundle of relevant documents, known as the Court Book, to 6 December 2018. On that occasion, time was also extended to the applicant to file and serve any Amended Application and any further evidence to 17 January 2019. The orders also provided that the first respondent have leave to return the matter to the Court’s list for a show-cause hearing pursuant to r.44.12 of the Rules on three days’ notice to the applicant after 7 March 2019. Those orders also noted that the applicant agreed to receive documents at the email address provided in the initiating application filed by the applicant on 28 September 2018.
On 26 March 2019, leave was granted to the first respondent to return the matter to the Court’s list for a show cause hearing. That hearing was set down today at 10:00am before me and the call-over on 29 April 2020 was vacated. On 26 March 2019, each party was also directed to file and serve written submissions by 4 April 2019.
The applicant was unrepresented before Court this morning, although he had the assistance of an interpreter.
At the outset of the hearing I took the applicant through the chronology that I have recited above, and confirmed with him that he had not filed any document either in accordance with those directions or otherwise and that he had no further document to provide to the Court today.
I explained to the applicant that the role of this Court was very different to that of the Authority and that it is not for this Court to reconsider the applicant’s claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the Authority was made according to law or was effected by a mistake that went to its jurisdiction. I explained that the Court had no power to interfere with the decision of the Authority unless the Court was satisfied that the decision was effected by mistake that went to its jurisdiction. I further explained that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake; and that if the findings of the Authority were open to it on the evidence and material before it and for the reasons it gave, then the fact that the applicant may disagree with those findings is not sufficient to establish jurisdictional error on the part of the Authority.
The applicant confirmed that he continued to rely on the ground of his application filed on 28 September 2018.
I explained to the applicant that the ground was a bare assertion, unsupported by particulars or evidence and, by itself, did not disclose an error capable of review by this Court.
I then asked the applicant what was it that he said was the error made by the Authority. The applicant said that he was waiting for his lawyer to tell him. I said that there was no evidence of any lawyer involved in this proceeding. The applicant replied that he had consulted a lawyer after he received the letter from the Court, dated 26 March 2019, notifying him of today’s show cause hearing.
I understood the applicant to be seeking an adjournment. That adjournment was opposed by the respondent and refused by me for the following reasons:
i)The applicant had been on notice of the hearing today since 26 March 2019, having been notified by the first respondent on 13 March 2019, of the first respondent’s intention to return the matter to the list in accordance with directions made by the Court.
ii)The applicant had been given until 17 January 2019 to file any further documents in this proceeding. The applicant has not filed any document.
iii)The applicant was given the contact details of legal services providers and translating and interpreting services in documents headed in his own language on 18 October 2018, and yet, he has taken no steps thereafter to obtain legal advice until sometime after 26 March 2019.
iv)There is no evidence before the Court of any instructions accepted by a lawyer to advise the applicant.
v)The Rules entitle the first respondent to seek to have the applicant’s application dismissed where the ground of his application does not disclose an arguable case.
vi)The ground relied on makes the bare, unparticularised assertion that the Authority’s decision is infected with legal error.
vii)The applicant has not given any indication to the Court this morning what he means by that assertion other than to say that the green book is with his lawyer and his lawyer will tell the applicant what the error is.
viii)On the material before me to date, any adjournment would be futile as the ground that the applicant has identified does not disclose any error capable of review by this Court and has no prospect of success and no other complaint has been identified by the applicant.
ix)For those reasons, the applicant’s application for an adjournment is refused.
Following the refusal of the applicant’s adjournment application, the applicant said that he was reluctant to return to Sri Lanka. He was concerned that there is an election in the near future and that problems may be expected. The applicant said that if the current government continues in power he was happy to return to Sri Lanka. The applicant had nothing further to say in support of his application.
The first respondent in comprehensive submissions, outlined the applicant’s claims for protection, the procedural history of the application and the decision of the Authority as follows:
“Applicant’s Claims for Protection
5. The Applicant is a (now) 55 year old citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka) who arrived in Australia as an unauthorised maritime arrival on 29 August 2012 (via Christmas Island).
6. The Applicant is a Tamil male from Sri Lanka’s Northern Province and claims that if returned to Sri Lanka, he will be seriously harmed by the Sri Lankan authorities, the Criminal Investigation Department (CID) and/or members of paramilitary groups, including the Karuna Group.
7. The Applicant's claims primarily relate a range of incidents arising from his status as a restaurant owner in Sivapuram, Sri Lanka. The Applicant claims that:
(a) from 2002 to 2006, members of the Sri Lankan Army and police would consume food at his restaurant without paying and would threaten to harm him if he asked for payment.
(b) in early 2006, the Applicant complained to the Officer-in-Charge of the local police station about the officers' conduct. In retribution, three police officers came to his restaurant and demanded that he follow them to the police camp, where he was beaten until rendered unconscious. He lost three teeth and received facial scarring because of this incident.
(c) In June 2006, the Applicant's restaurant was visited by a number of CID members, who photographed the Applicant and an unknown Tamil patron named "Subash". A few days later, the Applicant read a newspaper article which revealed that "Subash" was a member of the Liberation Tigers of Tamil Eelam (LTTE) and was killed a short time after his photograph was taken at the Applicant's restaurant.
8. Following this incident, the Applicant feared he would be targeted by the CID and imputed with a pro-LTTE political opinion because of the photograph, and thus he kept a "low profile" for a "few months" before fleeing to Malaysia in September 2006.
9. Whilst in Malaysia, the Applicant claimed that his wife had informed him that the Sri Lankan authorities once visited his house in search of him, four to five months after he departed Sri Lanka.
10. The Applicant claimed that he returned to Sri Lanka in October 2009 and reopened his restaurant in April 2011, which he continued to operate until his departure for Australia in August 2012.
11. The Applicant claims that he left Sri Lanka as he heard that other business owners were being abducted and killed by the Karuna Group (a Tamil paramilitary group) and feared the same.
12. In the Applicant's Statement, he also claims to fear harm as a Tamil from northern Sri Lanka, as a person who has scarring and was "seriously harmed" by the police in the past, and as a failed asylum seeker who departed Sri Lanka unlawfully and sought asylum in Australia.
13. Before the Delegate, the Applicant made a further claim that from approximately May 2012, he received two to three anonymous phone calls per month, demanding money and threatening to bomb his restaurant (which was attached to his home), kidnap and/or shoot him if this demand was not met.
14. Additionally, the Applicant claimed at interview that he would also be at a risk of harm as:
(a) he was affected by the Departmental "data breach" in January 2014;
(b) he has in-law relatives living in countries with an active pro-LTTE diaspora;
(c) he is relatively wealthy, and owned a profitable garage/car wash business; and
(d) recent events demonstrated that the situation for Tamils in Sri Lanka is worsening.
15. In his solicitor's submissions to the IAA, a further claim was also raised to the effect that the Applicant feared harm arising from the Sri Lankan authorities' en masse treatment of returnees.
Procedural History of Application
16. The Applicant lodged his application for a SHEV, with the assistance of a solicitor and registered migration agent, on 23 March 2017. On 31 January 2018, the Department invited the Applicant to attend an interview, which was initially scheduled for 14 February 2018, but was rescheduled to 12 February 2018 at the Applicant's representative's request.
17. Following this interview, on 16 March 2018, the Delegate refused to grant the Applicant a SHEV.
18. As a "fast track reviewable decision" within the meaning of s 473DB of the Act, the Secretary referred the Delegate's decision to the IAA for review on 21 March 2018.
19. On 9 April 2018, the Applicant's representative provided written submissions, and additional country information to the IAA. The following day, the Applicant's representative provided the IAA with two letters in support of the Applicant's claims (in Tamil, with English translations).
Decision of the IAA
20. On 27 August 2018, the IAA affirmed the Delegate's decision not to grant the Applicant a SHEV.
Factual Findings
21. The IAA accepted that the Applicant owned and operated a restaurant in Sri Lanka. It also accepted that the Applicant made a complaint regarding police officers' refusal to pay for meals eaten at his restaurant, and that he was beaten by three officers as a result, leaving him visibly scarred.
22. The IAA further accepted that the Applicant unlawfully departed Sri Lanka by boat, and that his details were disclosed in the Departmental data breach.
23. However, the IAA did not accept the Applicant's claims regarding the CID's taking of a photograph with a Tamil man named "Subash" outside his restaurant, or the incidents which followed this were credible. These adverse credibility findings were founded upon:
(a) the Applicant's inconsistent evidence between his statement and interview regarding a "significant distinguishing physical feature" of the man with whom the photograph was allegedly taken (being, his status as an amputee);
(b) the Applicant's "vague and confusing" evidence regarding the incident, which was "in contrast" to the "frank", "consistent" and "sufficiently detailed" evidence the Applicant otherwise gave with respect to his earlier claims;
(c) inconsistencies and implausibilities in the Applicant's evidence about whether he had participated in any discussions with the CID officers in the course of the incident;
(d) the Applicant's inability to reproduce the newspaper article regarding Subash's death; and
(e) the Applicant's claim that this incident occurred in June 2006, which was inconsistent with his claims that he closed his restaurant in May 2006, "a few days" after he was beaten for reporting the police officers' conduct.
24. Having rejected this claim, the IAA did not accept that the Applicant was the subject of adverse attention from the authorities before, or at the time, he departed for Malaysia in September 2006.
25. The IAA also reasoned that the Applicant's ability to return to Sri Lanka in 2009, without any problems from the CID or any other Sri Lankan authorities, cast "significant doubt" on his claims to have fled Sri Lanka because he was at risk of harm of the authorities.
26. The IAA also did not accept that the Applicant had been receiving anonymous threatening phone calls as claimed. The IAA based these adverse findings on the following matters:
(a) despite being a "trigger for his departure", the claim regarding the extortion calls was not raised in his written claims, but for the first time at interview;
(b) despite alleging that the calls were ongoing, the Applicant could not "support their legitimacy or who was responsible";
(c) the fact that the Applicant's remaining family members have continued to live in the family home (adjoining the restaurant which was subject to a bomb threat) without difficulty; and
(d) the Applicant's reaction of separating his family and fleeing the country was "disproportionate" in circumstances where he could "simply close his restaurant" .
27. The IAA also did not accept the Applicant's claim to have owned a profitable garage/car wash business, as the claim was "only provided when the Delegate asked the applicant about how his family have managed to financially support themselves" and the detail provided in support of the claim "did not reflect the knowledge that may be expected from a business owner".
Consideration of Claims
28. The IAA was not satisfied that the Applicant would face a real risk of harm due to his prior restaurant ownership or any perceived wealth if he returned to Sri Lanka. In this regard, the IAA relied upon the passage of time since the restaurant's closure, and country information which suggested that wealthy Tamils face a "low risk of extortion or kidnappings for ransom".
29. The IAA also did not accept that the Applicant would face a real risk of harm from the Karuna Group or any other paramilitary on his return. This finding was based on the IAA's rejection of his earlier claims, the finding that the Applicant was not of interest when he departed for Malaysia, and country information which suggested that paramilitaries are no longer active in Sri Lanka,
30. In considering whether the Applicant would face a real risk of harm due to his ethnicity and scarring, the IAA noted that the Applicant did not claim to have any connection or personal involvement with the LTTE or Tamil separatism more generally. Accordingly, and in light of country information suggesting that the risk of mistreatment faced by Sri Lankans of all ethnicities was "low", the IAA was not satisfied that the Applicant faced a real risk of harm on this basis.
31. Regarding the Applicant's other claims, the IAA did not accept the Applicant's status as a returning failed asylum seeker or illegal departee would lead to a real risk of harm, as country information suggested the likely treatment which the Applicant would face on his return would not amount to serious harm. Accordingly, the IAA also did not accept that the data breach placed the Applicant at a real risk of harm, notwithstanding that he may be identified as an asylum seeker because of it.
32. Finally, the IAA relied upon these reasons and findings in applying the complementary protection criteria, finding that none of the treatment which the Applicant would be likely to face on his return indicated that he faced a real risk of significant harm.”
The first respondent’s solicitor, Mr Moss, principally submitted that having regard to the fact that this was a hearing under r.44.12 of the Rules, there was no arguable case disclosed by the ground and, in those circumstances, the application should be dismissed. In support, Mr Moss referred to AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19],
“[i]t is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal”.

However, Mr Moss acknowledged the Minister's obligations as a model litigant and referred to the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4]-[10] and AYL15 v Minister for Immigration and Border Protection [2018] FCA 894 at [9] where His Honour stated:
“Before the primary judge there were a number of grounds. One review ground that stated simply that the application relies upon jurisdictional error. This ground was dismissed as an unparticularised assertion of jurisdictional error applying the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760: see reasons of primary judge at [19]. However, for reasons that I gave in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, the consequences of a failure to particularise written grounds will depend upon the circumstances. In a case such as the present where an applicant appears in person and seeks the review of a decision concerning a protection visa the applicant should be afforded an opportunity to explain the grounds. This opportunity was afforded through the consideration by the primary judge of other matters raised by affidavit which were treated as appeal grounds.”
The first respondent’s submissions address the two principal areas of concern for the Court, being the findings of the Authority and its treatment of new information.
The first respondent’s submissions considered in detail the issue of the Authority’s credibility findings and the Authority’s treatment of new information. Rather than paraphrase the submissions with which I wholeheartedly agree, I propose simply to adopt them as part of these Reasons as follows:
“Credibility findings
41. The IAA's decision record makes clear that it substantially rejected the applicant's claims in connection with the CID's taking of a photograph with a Tamil man outside his restaurant on the basis of adverse credibility findings which it reached with respect to this claim.
42. It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue, and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496, 507-9, [36]-[38]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, [30]).
43. In the Minister's submission, there is nothing before the Court to suggest that the IAA's credibility findings were affected by any error of the sort capable of vitiating these findings.
44. As set out at [21] above, the IAA's adverse credibility findings were squarely based on the Applicant's written and oral evidence, and the IAA's assessment thereof. The inconsistencies and implausibilities which the IAA noted in the Applicant's reasons did not relate to "objectively minor" matters, but instead went to the core of the Applicant's claims and his credibility.
45. In the Minister's submission, the reasons that the IAA gave for the findings that it made were detailed, comprehensive and extensively referred to the material before it. Further, these reasons were logical, did not proceed on a "false factual premise", and did not overlook relevant material.
46. Having made those findings, it was open for the IAA to reject the Applicant's claims. In this regard, it is well established that an Applicant's claims need not be uncritically accepted, nor must the IAA possess specific "rebutting" evidence before rejecting a claim (see Minister for immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 596; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 451; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348).
Treatment of New Information
47. Furthermore, the Minister submits that the IAA's consideration of the "new information" put before by the Applicant's representative it is plainly without error.
48. The principles applicable to the operation and application of s 473DD were recently set out by Colvin J in AOV18 v Minister for Home Affairs [2018] FCA 1871 at [4]-[5]:
“Relevantly for present purposes, I note:
(1) There are two requirements. First, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information: s 473DD(a). Second, the applicant before the Authority must satisfy the Authority that the new information either (i) was not and could not have been provided to the Minister before the decision on the visa application; or (ii) is credible personal information not previously known and had it been might have affected the consideration of the applicant's claims: s 473DD(b).
(2) The two requirements are separately stated. The section does not require a judgment to be formed taking into account both requirements or by balancing them. They are cumulative requirements.
(3) If one requirement is not met, then the new information must not be considered. There is no need to go on and consider whether the other requirement is met.
(4) In [CQW17], it was said that matters relevant to the second requirement will usually form part of the consideration of all relevant circumstances required for the purposes of forming the state of satisfaction as to whether there are exceptional circumstances for the purposes of the first requirement. Even so, 'it is a misconception that the factors in s 473DD(b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether 'exceptional circumstances' exist ass 473DD(b) does not codify what constitutes 'exceptional circumstances'.
(5) The statement by White J in [BZV16] that the two requirements 'are cumulative but may nevertheless overlap' . . . is to be understood in that context. It is not the case that in considering whether there are exceptional circumstances it is necessary to consider all aspects of the second requirement. It depends upon the nature of the new information as to the significance of particular matters.
(6) In forming a view whether it is satisfied that there are exceptional circumstances the Authority undertakes an evaluative judgment. To be exceptional 'a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'. Plainly, whether that is so depends upon the particular circumstances and the evaluation of those circumstances is entrusted to the Authority by the requirement that it be satisfied as to the exceptional character of the circumstances.
[5] The final point is important because s 473DD conditions the exception to the prohibition in s 473DD upon the state of satisfaction of the Authority, not the view of the Court or the application of an objective standard.”
49. In the Minister's submission, the IAA's reasons for its findings that exceptional circumstances did not exist so as to justify consideration of the new information provided plainly disclose that the IAA properly understood and applied the relevant provisions in s 473DD of the Act.
50. To support this conclusion, the Minister relies upon the following propositions:
(a) the Authority's treatment of the IAA Submissions themselves as not falling within the "new information" provisions, as they were not "information" but "argument", was correct (Minister for Immigration and Border Protection v CLV16 [2018) FCAFC 80, at [56] Flick, Griffiths and Perry JJ);
(b) it is now well-established that the raising of a claim to fear harm which had not been previously put by an Applicant necessarily involves the communication of "new information" and is thus subject to the provisions of s 473DD of the Act (see CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; EXV17 v Minister for Home Affairs [2018] FCA 1780; ADN18 v Minister for Home Affairs [2018] FCA 1677)
(c) in circumstances where an Applicant does not put any express material before the Authority to explain how new information satisfies the criteria in s 473DD, the Authority does not err by finding that s 473DD(b) (and thus s 473DD overall) is not satisfied (see AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] per Mortimer J);
(d) a finding that the material is not relevant to the Applicant's claims (or, indeed, is not of obvious relevance, absent some further accepted explanation), is likely to be dispositive of the question of whether s 473DD is satisfied (see BEC17 v Minister for Immigration and Border Protection [2018] FCA 1884, [53] and CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967, [8]-[10];) and
(e) the Authority is under no obligation to give reasons for deciding whether or not certain information comprises "new information", or whether "exceptional circumstances" exist to justify its consideration. Accordingly, the Court cannot readily infer that matters not mentioned in the IAA's reasons were overlooked by it (see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, [25]-[30]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, [44]-[50]).
51. The Minister submits that consideration of these matters, in the context of the reasons given by the IAA, reveals that the IAA properly understood "the need to consider the credibility and probative value of the new information for the purposes of s 473DD", being "a matter relevant to s 473DD(b)(ii) but also relevant more generally to the question of exceptional circumstances" (see BMP17 v Minister for Home Affairs [2019] FCA 112, [63]-[66] per Banks-Smith J) .
52. Specifically, as the IAA found:
(a) the relevance of the extract from the unpublished decision of the Administrative Appeals Tribunal dated 2 March 2018 was unexplained;
(b) the assertion that the Applicant's father was "killed by the army" was a new claim that was unrelated to any of the Applicant's claims, and not supported by any "meaningful detail" on which the relevance and credibility of the claim could be tested;
(c) the Applicant's new claim to fear harm arising from en masse processing on return arose from the materials before the Delegate (where the Applicant was represented) and was not otherwise supported or connected to the Applicant's claims;
(d) the country information was of limited apparent relevance to the Applicant's claims, and was superseded by other contemporaneous and more recent sources; and
(e) the letters of complaint to the Grama Niladhari (a local government officer) post-dated the delegate's decision, did not clearly relate to the Applicant's claims and no explanation was given as to why the incidents were only reported shortly after the Delegate's decision (being 2-3 years after the underlying events occurred).
53. In the Minister's submission, absent any specific challenge, each of these findings are sufficient to show that the IAA's decision involved a proper consideration of "all the relevant circumstances" surrounding the new information in the context of the Applicant's claims more generally.
54. The matters identified tended against acceptance that "exceptional circumstances" existed to justify consideration of the new information. Accordingly, no error can be made out.”
A fair reading of the Authority’s decision record makes clear that the Authority carefully analysed and considered each piece of information placed before it by the applicant, and considered whether it was new information and whether there were exceptional circumstances to justify its consideration.
The Authority identified other material provided to it by the applicant and his representative which it characterised as arguments and to which it had regard. The Authority summarised the applicant’s claims and set out comprehensively its factual findings. The Authority then considered whether the applicant had a well-founded fear of persecution in the context of its findings and in the context of the relevant country information before it, in concluding that the applicant did not. The Authority also considered whether the applicant met the complementary protection criterion and, for the same reasons, concluded that he did not.
The Authority’s reasons are comprehensive, relevant and clear. The applicant has not identified any error by the Authority this morning and none is apparent on the face of the Authority’s reasons.
I am grateful to the first respondent’s solicitor for the depth, clarity and comprehensiveness of his reasons.
In the circumstances, I am not satisfied that the Authority’s decision is affected by jurisdictional error, although I make no final conclusion on that issue.
Accordingly, in the exercise of the Court’s discretion under r.44.12 of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application filed on 28 September 2018, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.)

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 April 2019