Fgi18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 761

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 761

File number(s):

ADG 403 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

16 April 2021

Catchwords:

MIGRATION – Application for Safe Haven Enterprise visas – adverse credibility findings against first applicant – submission of new information at a late stage of the visa application process – decision of Authority not to consider new information in circumstances where it could have been earlier disclosed to the Minister before the making of the Minister’s decision – no jurisdictional error established – application dismissed  

Legislation:

 Migration Act 1958 (Cth) ss 473CB, 473DD, 473DD(a), 473DD(b)(ii)

Cases cited:

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640.
AUS17 v Minister for Immigration and Border Protection & Anor [2020] HCA 37.

Number of paragraphs:

26

Date of last submission/s:

23 March 2021

Date of hearing:

18 March 2021

Place:

Brisbane

Solicitor for the Applicants:

WLW Migration Lawyers

Counsel for the Applicants:

Mr Kenneally

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the First Respondent:

Mr Reilly

Second Respondent:

Submitting appearance save as to costs

ORDERS

ADG 403 of 2018

BETWEEN:

FGI18

First Applicant

FGJ18

Second Applicant

FGK18 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	16 APRIL 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The Further Amended Application for Review filed on 4 March 2021 be dismissed.

3.The First Applicant and Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicants are citizens of Sri Lanka who arrived at Christmas Island as unauthorised maritime arrivals on 8 November 2012. The first applicant was married to the second applicant. The third applicant was a child who arrived with the first applicant and the second applicant at Christmas Island. The fourth applicant is a child who was later born in Australia.

2. On 23 May 2013, applications for Safe Haven Enterprise visas were made on behalf of the applicants. Though the first applicant and the second applicant have each made separate applications for protection, the success of the applications made on behalf of the second, third and fourth applicants was essentially dependent upon the success of the first applicant’s refugee claim.

3. On 12 July 2018, a delegate of the Minister refused the applications for visas on the ground that it was not accepted that the first applicant satisfied the relevant refugee criteria. The delegate considered that the first applicant was of no adverse interest to relevant Sri Lankan authorities.

4. The decision of the delegate was affirmed by a decision of the Immigration Assessment Authority (‘the Authority’) handed down on 5 September 2018.

5. On 8 October 2018, the applicants filed an Originating Application for Review of the decision of the Authority. At the time of the hearing before the Court, the applicant relied upon grounds of review set out in a Further Amended Application for Review, filed on 4 March 2021 which were relevantly as follows:

   “The Authority's decision is affected by jurisdictional error because it failed to complete its statutory task and/or failed to consider a mandatory consideration by failing to consider:

   a) if new information submitted on 7 August 2018 2017 could be considered by the Authority pursuant to s 473DD of the Migration Act 1958 (Cth) (the Act): and/or

   b) if new information in the first applicant's statutory declaration given to the Authority on 17August 2018 satisfied s 473DD(b)(ii) of the Act.

   Particulars

   a. The Authority is prohibited from considering "new information" in the review unless it satisfies s 473DD of the Act. The Authority must be satisfied that:

   i. the information could not have been provided to the Minister (s 473DD(b)(i)); or the information is "credible personal information" that was not previously known and if known could have affected the Delegate's consideration of the applicant's claims (s 473DD(b)(ii)); and

   ii. exceptional circumstances justify consideration of the new information (s 473DD(a)).

   b. The Authority has a statutory duty to consider if new information provided by the referred applicant satisfies s 473DD(b) and s 473DD(a) and - if the information satisfies both criteria - to consider the information: AUS17v Minister for Immigration and BorderProtection [2020] HCA 37; 94 ALJR 1007, [3] [6], [11] - (12]).

   c. The applicants' lawyer submitted new information by e-mail on 7 August 2018, 17 August 2018, and 27 August 2018.

   e. The new information submitted on 7 August 2018 included a report from Dr Pitt, the first applicant's general practitioner, dated 3 August 2018 (see affidavit of Patrick O'Connor affirmed on 29 August 2019, Annexure PO2).

   f. The Authority considered whether the new information provided on 17 August 2018 and 27 August 2018 satisfied s 473DD could be considered in the review (see Authority's Reasons for Decision, [5] – [23]).

   g. The Authority did not refer to the report by Dr Pitt in its reasons for decision.

   h. It can be inferred that the Authority failed to consider if the report of Dr Pitt was new information that satisfied s 473DD.

   i.         Dr Pitt's report letter was capable of satisfying s 473DD.

   j. On 17 August 2018, by e-mail the applicants' lawyer provided a statutory declaration dated 17 August 2018, to the Authority.

   k. The Authority failed to consider or make a finding as to whether the new information in the statutory declaration satisfied s 473DD(b)(ii).

   l. The new information in the statutory declaration was capable of satisfying s 473DD(b)(ii) and (a).

   m. The Authority's failure to consider the statutory declaration and Dr Pitt’s report was material to the outcome of the review as:

   i. the new information in the statutory declaration addressed issues in the applicants' evidence relating to the first applicant's LTTE involvement, and therefore if considered, could have led the Authority to find the first applicant had been active in the LTTE: and/or

   ii. Dr Pitt's report was capable of corroborating the first applicant's claim to be tortured on suspicion of being involved in the LTTE while in detention in 2000 and reinforcing the first applicant's credibility generally.”

6. At the hearing before the Court, the applicant confirmed that the complaint concerning the Authority’s alleged failure to comply with the provisions of s. 473DD of the Migration Act 1958 (Cth) (‘the Act’) related only to what was said to be new information contained in the Statutory Declaration of the first applicant dated 17 August 2017. Section 473DD of the Act relevantly provided as follows:

   “473DD Considering new information in exceptional circumstances

   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 the decision 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.”

7. At [4] of its reasons, the Authority confirmed that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s.473CB of the Act.

8. The first and second applicants’ claims for protection were recorded at [26] of the reasons of the Authority as follows:

   “Applicant 1

   ·He was displaced many times during the war and lived in LTTE and Army controlled areas. During the war he had family members who were involved with the LTTE. His brother was recruited and worked for the Finance Division and intelligence. His maternal uncle ran the Tamil Rehabilitation Organisation division in Puthuvattuvan which assisted refugees and was funded by the LTTE and international organisations. Some of his mother’s cousins were also recruited to the LTTE frontline. All were killed in the conflict.

   ·In 1983 his maternal grandfather was taken and beaten by the Sri Lankan authorities and beaten so badly he died. He was suspected of helping a Tamil anti-government political organisation.

   ·In 1993 applicant 1 was recruited to the LTTE. He joined because one person from each family had to and he wanted to protect his family members. The applicant received training, helped with preparations for an attack in Mannar. The battle lasted 3 days. Applicant 1 carried 6 TN bombs and acted on instruction and threw a bomb at the army camp but no one was injured. He was told not to kill the soldiers but to take them to a medical tent, which he did. He believes the soldiers were then transferred to Jaffna and released. He received more training. He monitored SLA movements and was transferred from Vanni to Muthouar as Financial officer where he oversaw food collection and distribution for the LTTE.

   ·In 1995 he was told CID had information about him and had a reward of 100,000 rupees for anyone that could kill him. Some Tamil people were giving information about his whereabouts to authorities and two attempts were made on his life, but he was able to escape.

   ·In 1996 he was transferred to Vanni and his brother joined the LTTE. His mother asked the LTTE to return applicant 1 as there were no males at home. Applicant 1 was discharged, but not able to resign and told to do whatever the LTTE wanted.

   ·In 1999 applicant 1 was asked to go to Thailaiaddai in a mission to capture Jaffna. He was in charge of 15 soldiers and took commands from [name omitted]. He carried a T56-2 and walkie talkie. After three days was transferred and heard on the news that his brother had been killed in battle. Brigadier Balraj asked applicant 1 to return to Trincomalee to attend his brother’s rituals.

   ·Applicant 1’s mother asked the LTTE leader to release applicant 1 as she had lost one son. The leader had concerns for his safety in Trincomalee as it was under army control, but his mother insisted she would look after him. He could not go through the north to Trincomalee as he needed clearance from CID, so his mother paid a Muslim Sri Lankan man who took him an alternative route.

   ·Applicant 1 lived with his mother in Trincomalee, but was fearful of the army. On his way home from driver’s licence training he was rounded up by CID and jailed. His mother came with his ID card, but he was kept overnight. The next day they had a DO approved which meant they could detain him for 1.5 months. He was taken to special police office and the navy camp, where he was beaten, tortured and accused of being an LTTE member and a spy for them.

   ·His mother visited him on a Sunday and he begged for her to bring poisoned food so he could die. His mother talked to [name omitted] and he talked to an influential Sinhalese businessman, [name omitted]. His mother would pay money and begged for release. The first time CID refused.

   ·Applicant 1 was so upset that he asked [nae omitted] to put poison in his food. [Name omitted] started crying and told applicant 1 he would find a way out. [Name omitted] begged [name omitted] to try again. It was negotiated that his mother would pay 600,000 rupees. His mother sold land to fund the bribe. During the negotiations he was taken to plantum point camp and tortured for 5 days and taken to court. The court decided he should be discharged as there was no proof he was involved in LTTE and he was released.

   ·Upon release, applicant 1 told his mother he had to leave the country. His mother found a smuggler [name omitted] who was sending people to Saudi Arabia and this was arranged. The smuggler paid a bribe to immigration to assist his exit. They pawned jewellery for the payment.

   ·Applicant 1 was in Saudi Arabia for 8 years and returned to Sri Lanka on three occasions. Due to the risks he could not travel legally and each time it was arranged by [name omitted]. Applicant 1 paid him each time and told him which dates to travel and enter and exit safely. He was in hiding and kept a low profile.

   ·He returned to marry his wife (applicant 2) in 2007. While at the beach applicant 1 was arrested in a round up, beaten and interrogated. Applicant 2 contacted [name omitted], who contacted [name omitted] and secured his release for 500000 rupee. Applicant 1 was released after 4 days. He returned to Saudi Arabia.

   ·In 2008 applicant 1 returned to Sri Lanka to see his son. CID was more focussed on Vanni so security improved in Trincomalee. However, in 2009 the UN and ICRC in Trincomalee were expelled and CID started arresting people in Trincomalee.

   ·In 2010 applicant 1 tried to keep a low profile but because of his torture injuries was admitted to hospital for two days. He was transferred to Jaffna for spinal cord treatment. He was told he needed an MRI, which could only be obtained in Colombo. He was afraid to go, but [name omitted] agreed to take him to the appointment. He returned to Jaffna and was told he needed immediate surgery and one month bed rest.

   ·A person told his mother they could arrange medical treatment in Africa. They paid $US5000 to smuggler and 200,000 rupees to immigration to travel to Mali in 2011. In Benin applicant 1 received spinal medical treatment. A smuggler arranged his travel including negotiating with immigration officers to exit Sri Lanka.

   ·While in Benin, he was told the situation had improved in Sri Lankam, so in mid-2012 he returned to Sri Lanka with International Organisation of Migration (IOM) assistance voluntary repatriation scheme. When he returned he was questioned for a day at the airport by CID. IOM monitored and made sure he was not arrested and arranged and accompanied his transport home.

   ·In September 2012 the applicants were on good terms with a person from CID, [name omitted], who would often come to their shop and they provided him with free groceries. [Name omitted] told applicant 1 that a person called [name omitted] had been arrested again (the same person that had gone to court with him in 2000) and confessed applicant 1’s name to the authorities. [Name omitted] told applicant 1 that he was at risk and needed to hide.

   ·Applicant 1 did not tell his wife the full story, but said he needed to go away. So she arranged for him to stay with her sister in Vavuniya. He explained his problems to his brother in law and did not leave the house. Applicant 1’s mother found out he was in Vavuniya and decided to come and see him as speaking on the phone was too dangerous. Applicant 1 told his mother about his issues and she told him to leave.

   ·When in Vavuniya, authorities twice came to his house looking for him. [Name omitted] told applicant 1’s mother that another LTTE member, [name omitted], had disclosed that he was a LTTE member. Applicant 1’s mother found out about an opportunity to travel to Australia and contacted an agent. Applicant 1 has heard [name omitted] has disappeared and his father is still looking for him.

   ·In February 2014 the Australian immigration department released the applicants’ personal details on the website and he fears the Sri Lankan government now have his details, know they left illegally and travelled to Australia. He fears it will confirm the Government’s suspicions that he is a threat to them.

   ·Applicant 1 fears he will be targeted because he has been involved in the LTTE, is a Tamil, he fled the country illegally while authorities are still looking for him and is in greater danger as the authorities know he has fled to Australia, which they will see as an admission of guilt. They will see him as a threat to the government and arrest him upon return.

   ·Applicant 1 cannot provide his original passport because in 2013 CID came to his parent’s home looking for him, searched the house and confiscated his passport, an old phone he purchased in Benin and an old document he used to report to the Navy. Applicant 2’s family tried to send their original ID cards in the mail to them but they were stopped in the mail by the authorities.

   ·Applicant 1 suffers ongoing mental health concerns due to torture and trauma and LTTE recruitment. While in Benin he was in such bad pain he sought medical attention there. In Australia he found out doctors in Benin removed parts of his spine. He still suffers from terrible pain in the leg and has been told he needs treatment for the other leg as well. He suffers, headaches, lack of concentration and nightmares. He asks that his physical and mental health concerns be taken into consideration.

   Applicant 2

   ·Applicant 2 spent many years displaced due to the war. She remembers a lot of fighting between the LTTE and government and where they lived often changed between them.

   ·In 1990 her aunt’s husband was arrested and burned alive by authorities as they suspected he was involved with the LTTE, but he was not.

   ·During the 2004 Tsunami, applicant 2 was swept away and found later sick and injured and taken to hospital.

   ·Applicant 2 has witnessed terrible things in Sri Lanka and has been seeing a counsellor since her arrival in Australia to support her mental health. She still has very bad headaches and ongoing health problems.

   ·Applicant 2 left Sri Lanka because of the husband’s problems (applicant 1) from authorities. Because of the husband’s problems, authorities also harassed and targeted applicant 2.

   ·Her husband was arrested and severely tortured by authorities and after release, he fled to Saudi Arabia. While away, authorities continued to look for him. They would often come to applicant 2’s parents’ home, where she lived, looking for applicant 1 and harass applicant 2. She would lie to them (sic) and tell that he was not in the country. They would threaten that if he did not report to the camp they would arrest applicant 2 instead.

   ·Just before they left Sri Lanka, applicant 1 received information, but he did not tell her too much as he did not want to scare her. Applicant 1 told applicant 2 he was going to be arrested and they needed to flee. Applicant 1 stayed with applicant 2’s sister in Vavuniya in the hospital quarters for 10 days, then returned home and fled the country the same day.

   ·Applicant 2 was scared on the 33 day boat journey and worried about her young son. They started to run out of food and water, her husband was so sick he could not walk and their son did not eat for several days.

   ·In February 2014 Immigration department leaked her personal details on the website. She is worried the Sri Lankan Government will now know they are in Australia, fled illegally and this will place them in great danger.

   ·Applicant 2 fears arrest, torture, death by Sri Lankan authorities because of her association with applicant 1 and because she fled the country illegally.

   ·Applicant 2’s family posted their original ID cards but the parcel was intercepted in Colombo by CID and the family was asked to pay a bribe. She is not sure where the ID cards are, but will find out.”

   [Names of persons omitted]

1. At [5] – [13] inclusive of its reasons, the Authority analysed whether or not it ought to consider what was submitted to be new information as contained in the first applicant’s lawyer’s letter of 17 August 2018, as well as the contents of the first applicant’s Statutory Declaration dated 17 August 2018. [1]

   [1]           Court Book (CB) pp. 324 – 335.

2. The first applicant’s Statutory Declaration provided as follows:

   “I, [name omitted] of [address omitted], make the following declaration under the Statutory Declarations Act 1959:

   1. I make this statement in support of my referral to the Immigration Assessment Authority (IAA) to review the decision of the Department of Home Affairs (DHA) to refuse me a protection visa.

   2. I wish to respond to the findings of the DHA to refuse me a protection visa and provide more information about my claims.

   My LTTE Involvement

   3. The DHA made adverse findings about my LTTE involvement on the basis of details I provided to her during the interview. If I had known that I needed to provide more details about my LTTE involvement, I would have provided this information to satisfy her that I was a member of the LTTE.

   4. Towards the end of the interview the Delegate also accepted that I was fearful about some details, such names of other LTTE members but then proceeded to make adverse findings against me for this reason. I believe this is unfair and request that the IAA schedule an interview to ask me questions about the LTTE, particularly about my work in LTTE intelligence. For example, I can provide details about how I helped the LITE in intelligence by transferring weapons into army-controlled areas. I would like the opportunity to answer these questions at an interview, so my claims can be properly assessed by the IAA.

   5. I also wish to respond to the findings of the Department about why the army released me on both occasions when I was arrested. As I have explained to the Department, I was released by the army as they could not prove that I was LTTE at the time and did not have enough evidence to convict me under the PTA. The army did not know my original name with the LTTE, and I had been working for the LTTE In a different area .This is why I was never given a release certificate upon release and why I am unable to provide this as evidence to the Department or the IAA.

   6. However, I was identified as former LTTE and my name was given to the authorities in 2012 as I have explained and is the reason I fled the country. After coming to Australia, the army confiscated my passport and now have enough evidence to charge and imprison me under the PTA.

   7. The DHA also made adverse findings against me because I did not tell my wife about my LTTE activities while living In Sri Lanka. I believe this finding is unreasonable.

   8. Firstly, my initial LTTE involvement occurred before we were married in 2007. Secondly, my wife did know that I had been arrested and harmed in Sri Lanka due to my injuries and assumed it was because I was suspected of being in the LTTE. She knew I had some involvement, as a lot of Tamil men were somehow involved with the LTTE during the war.

   9. However, I was very worried about telling her for fear that she would worry after she lost her baby and when her mental health declined. I also feared that the information may be overheard by informants working for the Government. I there made a decision not to talk about everything in the past with my wife regarding my LTTE Involvement in Sri Lanka. I only disclosed the full extent of my LTTE involvement to her in Australia when I felt safe to do so. In the LTTE we were trained to keep our role secret and not disclose details of the LTTE activities outside of the organization.

   10. I also believe the Delegate misunderstood how naming conventions worked in the LTTE. As I have explained, I was given an LTTE name when I first joined the LTTE and this changed to [name omitted]. While in the LTTE, I would refer to other cadres using the word Aman, which means brother or uncle in Tamil. Combat leaders were given titles such as Brigadier or captain. Once LTTE members were killed, they were given names after their death and posthumously promoted.

   11. The delegate also did not accept that my brother, who was part of the LTTE, was killed in combat due to what was written on his death certificate. This finding by the DHA was unreasonable because the Sri Government would not publish the real cause of death on death certificates if they were an ex LTTE cadre. It was usual practice for the Government to issue death certificates with descriptions such as 'shelling'.

   My travels to and from Sri Lanka

   12. The Delegate made adverse findings against me on the basis that I was able to travel In and out of Sri Lanka using a Sri Lankan passport. She made a finding therefore that I am not of any interest to the authorities. I wish to respond to this.

   13. When I travelled out of Sri Lanka and back, I paid an agent to help me leave safely. This was very common way to leave the country safely. I thought I provided this explanation in significant detail during the interview to the Delegate.

   14. As I have explained, I used an agent called [name omitted] to helped me travel safely to and from Sri Lanka. He told me what I needed to, who I needed to bribe and when to be at the airport. In 2004, the first time I came to Sri Lanka it was during peace time and there were no checkpoints. It was therefore easy to travel back without being caught be the Sri Lankan authorities.

   15. On the second occasion in 2007, the agent told me to bring liquor, foreign money and I brought everything, and he accompanied me to my house. I travelled to Sri Lanka to marry my wife. However a month after my arrival, I arrested again. I travelled back to Saudi Arabia via the same process in 2007.

   New information

   16. When I was arrested in 2000 by the army, I was arrested alongside two other Tamils and their names are listed in the court release document I provided to the Department. One of these men, [name omitted] was a member of the LTTE like me. He has recently been granted a protection visa in the United Kingdom and I will providing evidence of this in support of my case to the IAA as soon as possible. He will also be able to attest to my role in the LTTE.

   17. I have not provided this Information to the Department previously because I did not know the Delegate did not accept I was a member of the LTTE until she made her decision. I therefore could not provide this evidence until now.”

   [Names of persons omitted]

3. As to the contents of the first applicant’s Statutory Declaration, the Authority said as follows:

   “[5] On 17 August 2018 the applicant’s representative provided submissions and new information to the IAA.

   [6]. The submissions were the delegate’s findings were unreasonable, objectively incorrect, nonsensical, speculative and should be disregarded. Adverse credibility findings were unreasonable because the delegate failed to apply ‘what if I am wrong’ test, the applicant’s statement of claims was only a summary and said he would provide further info at the interview, he suffered significant mental trauma and was not put on notice that the delegate was not satisfied about LTTE involvement claims. It was submitted given applicant 1 required ongoing specialist treatment for physical and mental health that there is real chance the face serious harm on questioning upon arrival. To the extent that the submissions are argument and not new information, I have considered them.

   [7] The new information included a statement from applicant 1 and a further psychologist report about applicant 1 from STTARS dated 14 August 2018. It was submitted circumstances warranted the new information be considered because of the seriousness of the applicant’s mental health diagnosis, relevance and probative value of the claims, particularly in light of country information that former LTTE cadres may be owed protection and the information goes to the heart of the applicant’s claim for protection and is relevant to any meaningful assessment. It was submitted the information could not have been given earlier as the statement and medical evidence are dated after the delegate’s decision. It was submitted the information was credible and not previously known which may have affected the decision and provides greater detail about the extent of the applicant’s PTSD and responds to the delegate’s findings.

   New information – applicant 1’s 2018 statement

   [8] In summary the new information in the statement was applicant 1 helped the LTTE by transferring weapons into army controlled area; he was released in 2000 because they did not have enough evidence to convict him under the PTA; the army did not know his original LTTE name and he had been working in a different area and this is why they never gave him a release certificate. Applicant 1 argued that the delegate’s adverse finding that he did not tell his wife about LTTE was unreasonable. The new information was his wife did know that he had been arrested and harmed in Sri Lanka due to his injuries and assumed it was because he was suspected LTTE. She knew he had some involvement, as a lot of Tamil men did. However he was worried to tell her in case she lost the baby and her mental health declined. He feared the information may be overheard by Government informants, so only disclosed the LTTE involvement to her in Australia when he felt safe. The delegate misunderstood the naming conventions in the LTTE. In 2004 when he returned to Sri Lanka the first time from Saudi Arabia it was peacetime, there were no checkpoints so was easy to travel back. In 2007 the agent told him to bring liquor and foreign money and he accompanied the applicant to his house. He returned to Saudi Arabia via the same process. One of the men ([name omitted]) arrested with him in 2000 was an LTTE member and he has recently been granted protection in the UK and he will be providing evidence of that and he can attest to his LTTE role.

   [9] In the statement the applicant stated if he had known he needed to provide more details about his LTTE involvement he would have. He believed the delegate accepted he was fearful to provide LTTE names but made adverse findings and this was unfair. He requested an IAA interview to ask him questions about the LTTE and his LTTE intelligence work. He stated he could not have provided the information previously because he did not know the delegate did not accept he was a LTTE member until she made the decision.

   Should I consider the new information in applicant 1’s 2018 statement?

   [10] While the statement was dated after the delegate’s decision, I do not accept that the information could not have been provided earlier as the information related to claimed past events, known to applicant 1. The applicant was informed and well aware of the need to provide all information. He was asked a number of times if he had anything further to add. He was given a number of adjournments in the protection interview, including to discuss with his representative and to provide further information. Towards the end of the interview applicant 1 provided new claims that he had been an LTTE informer until 2009. He was asked a number of questions about that information. I do not accept that he was not on notice about credibility issues. The delegate clearly raised concerns that if he had such an LTTE role that it would be expected he would have come to the attention of authorities before 2012. Further, the applicant’s lawyer noted at the end of the interview that the delegate had raised plausibility of a number of events and would address that in submissions. At interview, the applicant was given a number of opportunities to provide more information. He confirmed he had provided all his information. Further, the applicant was informed he could provide further information and submissions within 14 days and any information received prior to the decision would be considered. He was legally represented throughout. His legal representative provided detailed submissions and summary of the applicant’s claims post interview. None of this new information was raised.

   [11] Further, the applicant was well aware that his LTTE claims were the heart of his claims. Further, at interview he raised new information about being an LTTE informant which was discussed and considered. It is odd that he would not have provided the new and complete LTTE information then. I consider that applicant 1 was provided with plenty of opportunity to discuss the informer claims at the protection interview. I consider that he has raised new claims again so late, leads me to doubt the genuineness of the new information. Further, while the applicant claimed he was trained not to disclose LTTE information, this is at odds with the fact that he did disclose his LTTE involvement in his statement and interview. I do not accept this explanation.

   [12] Further, at the protection interview credibility concerns about the applicant’s ability to travel in and out of Sri Lanka was discussed. The applicant’s bribery claims were discussed at length at interview. That he did not mention such a key detail that the smuggler travelled with him to the house and back each time leads me to doubt the genuineness of his claim. At the protection interview he mentioned bribery with money, but did not mention liquor. I do not consider the means of bribery in that regard is of any significance or that it would or might have affected the consideration of the applicant’s claims.

   [13] I do not consider the applicant’s mental or physical health amount to exceptional circumstances to justify considering the information. Applicant 1 claimed the back injuries and mental issues stemmed from his beating in 2000. Applicant 1 has lived and worked in Sri Lanka and overseas since then with these conditions. He travelled overseas for his back operation in 2011. I do not consider his condition prevented him from articulating his claims. Further, having listened to the interviews, I consider the applicant had a meaningful opportunity to provide information. He had legal representation throughout. He provided a lengthy statement to the department and had two interviews with many breaks to stretch his back and he had post interview submissions. It is not unusual that applicants have mental health and physical issues. I do not consider the applicants conditions are exceptional or prevented them from providing information. I am not satisfied there are exceptional circumstances to justify considering the information.”

   [14]      I have not considered the information.”

   Consideration of New Information by Authority

4. The first applicant’s claims were made in the context of his having asserted that he had been an active LTTE member from 1993 – 2000. It was submitted on behalf of the applicants that the information summarised by the Authority at [8] of its reasons was capable of satisfying s. 473DD(b)(ii) of the Act because it was personal information, credible in the sense that it was “capable of belief”, [2] and responsive to the delegate’s findings. It was submitted that at [11] – [13] of its reasons, the Authority had only considered whether the information satisfied s. 473DD(a) of the Act, and that it had made no findings as to whether the information was “credible personal information”, or otherwise was information which could have influenced the delegate’s consideration of the applicant’s claims. There is no merit to such submissions.

   [2]           Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020]

   FCAFC 159 at [37], [42] and [75] per Mortimer and Jackson JJ.

5. At [6] of its reasons, the Authority summarised the criticisms made on behalf of the first applicant concerning the findings of the delegate. At [7] – [9] of its reasons, the Authority summarised the “new information” as including that the first applicant had helped the LTTE by transferring weapons into army controlled areas; that the first applicant had been released in 2000 because there was insufficient evidence to convict him; that the army did not know his original LTTE name; and that the first applicant had not been given a release certificate because he had been working in different area.

6. At [10] of its reasons, the Authority found that the information contained in the 17 August 2018 Statutory Declaration could have been provided earlier to the delegate because such information related to claimed past events which were well known to the first applicant. The Authority noted that the first applicant had been made well aware of the need to provide all information to the delegate, his having been asked a number of times at the interview if he had anything further to add. Adjournments had been granted to him during the course of the protection interview for the purpose of allowing the first applicant to discuss those matters with his representative and provide further information if considered appropriate.

7. The Authority did not accept that the first applicant was not on notice about credibility issues. It was pointed out that at the end of the interview the delegate had raised the plausibility of the first applicant’s claims with him concerning a number of different events. It was in that context that the first applicant stated that he had provided all of the information which he wanted to. The Authority noted that though the first applicant was legally represented throughout, and that though the first applicant had been given a further fourteen (14) days within which to provide further information and submissions, none of the new information referred to in the Statutory Declaration had been raised by the first applicant.

8. At [11] of its reasons, the Authority recorded that though it was clear that the first applicant’s alleged involvement in the LTTE was central to his refugee claims, it was unusual that at the time of the interview the first applicant would not have provided a complete and whole picture about his LTTE involvement. The Authority found that because the first applicant had raised such new claims at a late stage in the visa application process, the first applicant lacked credibility. Such finding by the Authority was open on the evidence before it. As Thawley J said at [21] – [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

   “[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

1. At [12] of its reasons, the Authority pointed out that it was incredible that the first applicant, when discussing his apparent ability to travel in and out of Sri Lanka after 2000 with impunity, would have failed to have mentioned that the alleged smuggler had travelled with him to and from his home on each occasion of his travel in and out of the country. At [13] of its reasons, the Authority did not accept that the first applicant’s claimed mental or physical health conditions constituted exceptional circumstances justifying the Authority’s consideration of the new information. It was pointed out that the first applicant had lived and worked, both within Sri Lanka and overseas since 2000, whilst suffering those alleged conditions. Further, the Authority did not consider that either of those claimed conditions prevented the first applicant from articulating his claims. Having listened to the recordings of the interviews, and having carefully considered all of the evidence before it, the Authority was entitled to conclude that there were no exceptional circumstances justifying its consideration of the new information.

2. The Authority also considered the evidence of the first applicant about his wife’s lack of knowledge of his alleged LTTE involvement, finding such evidence to be implausible. As to that finding, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

3. Such finding was open on the evidence before it and was not legally unreasonable. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:

   “[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case.  A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review:  Li at [100]-[102].

   (i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

   [42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable.  Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”

4. It is clear that the Authority did not believe the first applicant to be a witness of credit. The Authority was entitled to make such adverse credibility findings against the first applicant. At [34] – [36] inclusive of its reasons, the Authority carefully considered the first applicant’s conflicting evidence and set out its findings as follows:

   “[34] I have considered applicant 1’s brother’s death certificate, which records his death as by shell explosion. Applicant 1 claimed the authorities falsify the certificates and his brother was LTTE and killed in an ambush. However, in his entry interview, the applicant claimed his brother was killed in a bomb blast, while delivering coconuts in 1999 and his father was killed in an explosion in 1997. Applicant 1 did not claim his brother was in the LTTE.

   [35] I have considered the claims applicant 1 was distressed and scared at the entry interview and not aware it would be used for assessing his application or understood the processes. However, I find his explanation unconvincing. Even if scared or not understanding the process, I do not accept that he would not disclose his main reasons for departing Sri Lanka, particularly given his claim he sought safety and protection from Australia. Further, he was informed it was important to provide true and correct information. Even if scared about disclosing the LTTE connection, he could have said his brother was killed during fighting. I do not accept he would say his brother was killed while delivering coconuts, if in fact he had been killed during fighting.

   [36] While I accept that applicant 1’s brother was killed, I do not accept he was killed in an ambush while fighting for the LTTE. I do not accept applicant 1’s explanations. Applicant 1 was very clear in his entry interview about the circumstances of his father’s and brother’s death. I consider the death certificate and applicant 1’s evidence at the entry interview are not consistent with this claim. I consider applicant 1 has changed his account in relation to his brother’s death to enhance his protection claims. I do not accept the applicant 1’s brother was LTTE or LTTE spy or killed in fighting. On the evidence I am not satisfied applicant 1’s uncle or cousins were LTTE.”

5. At [40] – [41] inclusive the Authority further found that the first applicant lacked credibility as follows:

   “[40] However, I consider the applicant’s claims that authorities did not know about his LTTE involvement when he was arrested in 2000 is at odds with his claims that in 1995 CID had information about him and announced a reward for anyone who could kill him. Further, it is at odds with his claim that some Tamil people were giving information about his whereabouts to authorities and that there were two attempts on his life.

   [41] Further, his claims that authorities were not aware or that he concealed his LTTE involvement are not credible. It is not credible that he was held and questioned for 15 days, and authorities did not find out about his LTTE involvement. Further, I find it difficult to believe that if he had been a member of the LTTE since 1993, been in many battles, and worked as finance officer and informer that the authorities would not have known or found this out.”

6. The Court does not accept that the Authority failed to properly exercise its statutory review jurisdiction. The Authority carefully and extensively considered all of the applicants’ claims for protection and complimentary protection.

7. The Authority did not err in failing to consider what was submitted to be new information. The Authority appropriately assessed the information against the relevant s. 473DD criteria. The facts of the matter before this Court were distinguishable from those before the High Court in AUS17 v Minister for Immigration and Border Protection & Anor [2020] HCA 37, where at [11] – [12] it was said:

   “[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

   [12] The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).”

   (footnotes omitted)

8. The applicants have failed to establish jurisdictional error on the part of the Authority.

9. The Further Amended Application for Review is without merit and is dismissed.

10. The Court will hear the parties as to costs.  

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       16 April 2021

SCHEDULE OF PARTIES

ADG 403 of 2018
Applicants
Fourth Applicant:	FGL18