FQQ17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 1198

•

14 November 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FQQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1198  

File number: MLG 2799 of 2017
Judgment of: JUDGE LADHAMS
Date of judgment: 14 November 2024
Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – where the Authority failed to consider new information against the requirements of s 473DD of the Migration Act 1958 (Cth) – whether that failure was material – whether the Authority asked itself the wrong question in deciding not to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant at an interview – whether the Authority unreasonably failed to exercise, or considering exercising, its discretion in s 473DC of the Migration Act to get new information from the applicant – whether the Authority made a finding that was illogical or irrational – jurisdictional error established – writs issued.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 473DB, 473CA, 473DC, 473DD, 476, 477

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) r 11  
Cases cited:

BCO18 v Minister for Home Affairs [2019] FCCA 1491

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

DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218

DVH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 194

EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159
Division: Division 2 General Federal Law
Number of paragraphs: 68
Date of hearing: 6 March 2024
Place: Perth (By Microsoft Teams)
Counsel for the Applicant: Mr M Kenneally
Solicitor for the Applicant: WLW Migration Lawyers
Counsel for the First Respondent: Ms K Chan
Second Respondent: Submitting appearance by the second respondent, save as to costs
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

MLG 2799 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FQQ17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT ORDERS THAT:

1.A writ of certiorari issue to quash the decision made by the Immigration Assessment Authority on 29 November 2017 (IAA17/01994).

2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.

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

  1. The applicant is a Sri Lankan Tamil who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority) on 29 November 2017. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).

    [1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Immigration Assessment Authority are to the Authority as it existed at the time the applicant’s matter was before it for review.

  2. The applicant relies on four grounds of application which assert that the Authority decision is vitiated by jurisdictional error because:

    (a)the Authority failed to consider whether new information satisfied s 473DD of the Migration Act, or unreasonably found that the new information did not satisfy those criteria, or failed to consider significant and critical corroborative information;

    (b)the Authority asked itself the wrong question in considering whether to exercise its discretion to get new information under s 473DC of the Migration Act;

    (c)the Authority unreasonably failed to exercise or consider exercising its discretion to get new information under s 473DC of the Migration Act; and

    (d)the Authority made a finding that was unreasonable, irrational or illogical.

  3. For the reasons explained below, I have found that the applicant has established jurisdictional error by ground 1. The Authority failed to consider whether new information in a report from his counsellor about the death of his grandfather met the requirements of s 473DD of the Migration Act and that error was material. It is therefore appropriate to issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the matter to be reconsidered. For the reasons explained at the end of this judgment, the writ of mandamus is appropriately directed to the Administrative Review Tribunal.

    VISA APPLICATION AND ADMINISTRATIVE DECISIONS

  4. The applicant entered Australia by sea in November 2012 as an unauthorised maritime arrival within the meaning in s 5AA of the Migration Act.

  5. The applicant applied for a protection visa on or about 29 April 2016. In a statement accompanying his visa application, the applicant claimed to fear returning to Sri Lanka as a Tamil and as a person who is associated by family with the Liberation Tigers of Tamil Eelam (LTTE) and who has been accused of supporting the LTTE.

  6. On 15 November 2016 the applicant attended an interview conducted by an officer of the Minister’s Department to discuss his claims for protection (protection visa interview). At the protection visa interview the applicant provided additional details about his claims and raised a new claim that his grandfather was beaten to death by the Sri Lankan authorities. Following the protection visa interview the applicant’s representative provided the Minister’s Department with additional material in support of the new claim about his grandfather. 

  7. On 10 February 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority for review under s 473CA of the Migration Act.

  8. On 15 March 2017 the applicant’s representative provided to the Authority a submission, a transcript of the protection visa interview, a letter from the applicant’s counsellor with an attachment, and copies of two death certificates with English translations. The applicant’s representative provided a revised submission on 29 March 2017 to comply with the Authority’s formatting requirements.

  9. On 13 July 2017, 30 August 2017 and 23 November 2017 the applicant’s representative provided country information reports to the Authority.

  10. On 29 November 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

    JUDICIAL REVIEW APPLICATION

  11. The applicant filed his application for judicial review on 21 December 2017. The application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.

  12. The applicant relies on an amended application filed on 13 February 2024 which raises four grounds. The grounds are set out under separate headings below.

  13. The evidence before the Court comprises:

    (a)a court book filed on behalf of the Minister on 3 October 2018;

    (b)an affidavit of the applicant filed on 8 February 2024, which is relevant only to materiality; and

    (c)an affidavit of Ms Jesheka Jeyaneshan filed on behalf of the applicant on 8 February 2024, annexing a transcript of the applicant’s protection visa interview.

    GROUND 1: DID THE AUTHORITY FAIL TO CONSIDER WHETHER NEW INFORMATION REGARDING THE APPLICANT’S GRANDFATHER’S DEATH MET THE REQUIREMENTS OF S 473DD OF THE MIGRATION ACT?

  14. Ground 1 reads:

    The IAA failed to perform its statutory task in failing to consider whether new information regarding the applicant’s grandfather’s death satisfied s 473DD of the Migration Act 1958 (Cth) (Act), or unreasonably found that the new information did not satisfy s 473DD or failed to consider significant and critical corroborative information.

    Particulars

    a.The applicant claimed that the authorities in Sri Lanka:

    i.questioned the applicant’s grandfather about the applicant’s whereabouts after the applicant fled to Australia; and

    ii.tortured and beat his grandfather to death.

    b.The IAA rejected the claim, in part, as it did not accept the applicant’s reasons for not raising the claim in his statutory declaration dated 2 March 2016.

    c.The applicant provided new information from his counsellor Ms Woods in a report dated 14 March 2017 that:

    i.the applicant had attended ten counselling sessions with Ms Woods of Foundation House from December 2013 to December 2014, and eleven counselling sessions from August 2016;

    ii.in around January 2014 the applicant did not accept his mother’s explanation for his grandfather’s death being an bite;

    iii.witnesses believed his grandfather had been killed by CID;

    iv.the applicant told Ms Woods in August 2016 that he first learned that his grandfather was beaten to death in July 2016;

    v.that the applicant had been unable to obtain clear information regarding his grandfather’s cause of death prior to July 2016 as people in Sri Lanka were reticent to discuss his grandfather’s murder over the telephone;

    vi.the applicant’s friend who told him that his grandfather was killed by CID said everyone in the village knew what had happened but were afraid to disclose it to the applicant due to concerns for their own safety;

    vii.that the applicant presented with severe self-hatred and guilt regarding his grandfather’s death due to his belief that his grandfather was targeted due to the applicant’s absence from Sri Lanka;

    viii.otherwise corroborated the applicant’s previous claims as to how and when he learned about his grandfather’s death;

    ix.indicated that Ms Woods told the applicant’s lawyer the applicant had further information about his grandfather’s death before the applicant’s interview with a delegate of the Minister on 15 November 2016; and

    x.direct evidence from Ms Woods that in January 2014 the applicant brought photographs of his grandfather’s body and showed them to her in a counselling session, that the applicant identified the images of being of his grandfather, and the applicant became distressed when discussing the images and his grandfather’s death.     

    d.The IAA failed to consider if the new information in Ms Woods’ report particularised at (c) satisfied s 473DD of the Act.

    e.Alternatively to (d) if the IAA found the new information did not satisfy s 473DD that decision was legally unreasonable as the reasons do not reveal any intelligible basis for the decision.

    f.Further or alternatively to (d) and (e), the IAA fell into jurisdictional error by failing to consider critical and significant corroborative material in the Woods Report outlined at particular (c).

    g.Either of the above errors were material to the IAA’s finding that the applicant’s grandfather had been targeted and killed by CID, and therefore material to the IAA’s findings as to the applicant’s profile and his credibility, and therefore to the result.

    The Authority did not consider whether the requirements of s 473DD were met in relation to information in the counsellor’s report about the applicant’s grandfather’s death

  15. As can be seen from the ground, the applicant asserts that the Authority either did not apply, or did not correctly apply, s 473DD of the Migration Act. That section relevantly 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 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.

  16. The applicant provided to the Authority a report dated 14 March 2017 prepared by his counsellor, Ms Woods. The report addressed two key issues that the applicant had addressed in counselling sessions with Ms Woods: the death of the applicant’s grandfather and the applicant’s history of sexual torture. Particular (c) to the ground provides a substantially accurate summary of the content of Ms Woods’ report insofar as it relates to the death of the applicant’s grandfather. The information was provided in circumstances where the applicant raised a new claim at his protection visa interview that his grandfather was beaten to death by the Sri Lankan Criminal Investigation Department (CID) and did not die of an insect bite in April 2013 as his mother had told him.

  17. The Authority addressed whether information in the report by Ms Woods met the requirements of s 473DD at [7] of its reasons. In this paragraph, the Authority said:

    The letter dated 14 March 2017 from the applicant’s counsellor was not before the delegate and is new information. The letter sets out the applicant’s history of counselling commencing in 2013 and includes details of correspondence in 2016 with the applicant’s previous legal representative about the applicant’s claims that he was sexually tortured during his 2008 detention; a copy of a further statement dated 4 October 2016 signed by the applicant which his counsellor assisted him to draft was included with the counsellor’s letter. The letter indicates that the applicant’s further statement was sent to and received by the applicant’s former representative. I accept that the claim that he was sexually assaulted was not specifically raised in his SHEV interview. However, I do not accept that the applicant was denied an opportunity to raise this in his SHEV interview. It is apparent from the transcript of his interview, and from listening to the interview, that his former representative was aware of and informed the delegate at the beginning of the interview that he had disclosed to his counsellor further details of the torture he alleges he underwent. His former representative also indicated that the applicant might be willing to disclose the details in his interview. Towards the end of his interview, he was twice asked by the delegate if he had provided all his claims; the applicant referred to going to counselling but only in reference to the death of his grandfather. Following his interview, on 30 January 2017 the applicant’s former representative provided further information about the death of the applicant’s grandfather. The information provided indicates that the applicant telephoned his former representative with his counsellor to provide that information; there is no indication that on that occasion the applicant or his counsellor raised the sexual assault issue with that representative. The applicant was informed at the beginning of his SHEV interview that it was his responsibility to raise all his claims for protection and provide evidence in support of those claims. Notwithstanding a number of opportunities to do so including after a break in his interview to discuss in private his claims with his representative, the applicant did not raise the issue. I have accepted that the applicant was detained in 2008 and have formed the view that the details of what he claims to have undergone during that detention (set out in the statement attached to the counsellor’s letter), scant as they are, do not materially affect my view of that claim. The applicant has not satisfied me the information could not have been given to the Minister prior to the decision being made nor am I satisfied that this information, if known, may have affected consideration of the claims: s.473DD(b). I accept that the applicant is unable to communicate without the help of an interpreter. However, I do not accept that he did not have any opportunity to discuss his claims with his previous representative. The applicant was informed by letter dated 21 December 2015 that access to telephone interpreting services was available through the Translating and Interpreting Service (TIS); a telephone number and website address for TIS National was also provided. It is also clear from the information provided to the delegate on 30 January 2017 that he was able to contact and provide further information to his then representative by telephone, at which time I consider the applicant had an adequate opportunity to raise with his representative any concerns he had about the adequacy of their representation and whether or not all his claims and evidence had been provided to the delegate. Having regard to all the circumstances, I am not satisfied that exceptional circumstances exist to justify consideration of the sexual assault claim and supporting letter.

  18. It can be seen from this extract that, in considering whether the report by Ms Woods met the requirements of s 473DD of the Migration Act, the Authority focused on the information about the applicant’s claimed history of sexual torture and did not expressly refer to the information in the report about the applicant’s grandfather’s death.

  19. It is not necessary to address all the submissions advanced by the applicant in relation to the Authority’s approach. That is because the Minister, appropriately in my view, accepted that the most likely inference to be drawn from the Authority’s reasons is that the Authority did not assess the information in Ms Woods’ report against the requirements of s 473DD of the Migration Act. I agree with both parties that that is the proper inference to be drawn from the Authority’s reasons. That was an error on the part of the Authority.

    The Authority’s error was material

  20. There is, however, a live issue between the parties as to whether the error of the Authority is material and both parties provided detailed submissions in relation to materiality. I do not include a comprehensive summary of the parties’ submissions on materiality in this judgment, but rather refer to critical aspects of those submissions in explaining the conclusions I have reached.

  1. The Minister included in his written submissions a summary of principles from case law regarding the proper approach that the Court should take to materiality. The principles summarised in the Minister’s submissions are consistent the approach outlined by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT), which was delivered shortly after judgment was reserved in this matter. In LPDT, the High Court confirmed that the inquiry posited by the question of whether an error is material is ‘wholly backward-looking’ and to be ‘answered by reference to the decision that was made and, depending on the nature of that error, how that decision was made’: at [10]. Whether an error is material is determined by inferences drawn from the evidence adduced on the application: LPDT at [13]. The majority of the High Court then said at [14]-[16] (footnotes omitted):

    14.The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

    15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

    16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

  2. Counsel for the Minister referred the Court at the hearing to cases to show how the courts have addressed materiality and applied a counter-factual analysis, including DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218, LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64 and DVH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 194 and I acknowledge the examples provided by these cases.

  3. In addressing materiality in the present case, both parties have referred to the Authority’s findings at [35] of its reasons in relation to the applicant’s claims about his grandfather’s death. The Authority said at [35] (footnotes omitted):

    The letter [written by the applicant’s mother and provided to the Department following the applicant’s protection visa interview] appears to do no more than confirm that the photos are of the applicant’s grandfather; it does not state how he died much less that he died as a result of being beaten by the CID. Given the seriousness of the applicant’s claims I consider this a significant omission. The photos are of poor quality and do not assist me to make a finding that the body is definitely that of his grandfather. However, I note the following. The applicant states he received the photographs from a friend late in 2013/early 2014. They appear to show a body lying in a pool of blood. The applicant stated his mother did not want to worry him about his grandfather’s cause of death which is why she did not tell him the truth about how he died. Given the nature of the photographs, it is simply not credible that if they are of his grandfather, the applicant would have been satisfied with the explanation given by his mother for his grandfather’s death and that he would not have made further enquiries of his friends and mother at the time he received the photographs about the circumstances of his death. I therefore find it hard to accept the applicant’s explanation that he only found out about what he claims is a real cause of his grandfather’s death 2 or 3 months before his SHEV interview and I consider the applicant has not been truthful in regard to this claim. The death certificate provided for his grandfather indicates that he died of ‘pressure disease’. The applicant claims that the cause of death was listed as a heart attack due to fears of reprisals from the Sri Lankan army if the real cause of death had been listed. I do not accept this. Given what I consider to be the problems with his evidence and the late raising of this claim, as an official record of death I prefer the document provided from the Sri Lankan Register of Deaths which indicates that his grandfather died on [date redacted] as a result of ‘pressure disease’. It follows that I do not accept that the applicant’s grandfather was beaten to death by members of the CID in an attempt to find out the applicant’s whereabouts.

  4. I accept the applicant’s submission that there is a realistic possibility that the Authority could have found that the information in the report by Ms Woods about the death of the applicant’s grandfather could have met the requirements of s 473DD of the Migration Act.

  5. Insofar as the parties addressed this issue in their submissions, their focus was on s 473DD(b)(ii) of the Migration Act, which requires consideration by the Authority of whether new information ‘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’. An assessment of whether personal information is ‘credible’ requires the Authority to consider whether the information is capable of belief, rather than whether it is true: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [75]; CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [43].

  6. I accept the applicant’s submission that, at the very least, Ms Woods’ account of what occurred in counselling sessions was capable of belief. It is also realistically possible that, having regard to Ms Woods’ assessment of the applicant’s reactions when giving her relevant information about the death of his grandfather, the Authority may have accepted that the information provided by the applicant about the death of his grandfather was capable of being believed.

  7. While it is not inappropriate to have regard to the Authority’s findings at [35] in assessing materiality, I do not accept the Minister’s submission that it is fanciful and not realistic to suggest that the Authority might have been satisfied that the new information was credible and that it may have affected the consideration of the applicant’s claims in the light of the findings of the Authority at [35] of its reasons and the content of the report of Ms Woods. In advancing the submission, the Minister highlighted two of the problems with the applicant’s evidence (which for present purposes does not include Ms Woods’ report) identified by the Authority at [35], namely:

    (a)that it was not credible that, if the photographs were of the applicant’s grandfather, the applicant would have accepted his mother’s explanation of his grandfather’s death and would not have made further inquiries at the time he received the photographs; and

    (b)the late raising of the claim.

  8. The Minister also submitted that Ms Woods’ report did not corroborate but rather contradicted aspects of the applicant’s evidence to the delegate at the protection visa interview, noting that Ms Woods’ report suggested that the applicant told her in January 2014 that it was clearly not true from the images that his grandfather died from a snake bite, and that the applicant’s evidence at his protection visa interview was that when he wrote his statement of claims (which was in March 2016) he believed his grandfather had died from other causes, and that he did not previously have the opportunity to give information about the death of his grandfather because he had only been speaking with his mother.

  9. The difficulty with the Minister’s submission is that it is not possible to ascertain from a counterfactual analysis based on [35] of the Authority’s reasons how it would have treated Ms Woods’ report had it considered it against the requirements of s 473DD of the Migration Act. One possibility, consistent with the Minister’s submissions, is that the Authority may have perceived aspects of the report to be inconsistent with other aspects of the applicant’s evidence and found that the information the applicant provided to Ms Woods, as recorded in her report, was not capable of belief. However, the information in Ms Woods’ report was also capable of addressing the main concerns of the Authority at [35] of its reasons. Ms Woods’ report suggests that the applicant was suspicious of the circumstances of his grandfather’s death well before he raised it with the Department and thought from seeing the images that it was clearly not true that he had died from a snake bite. Ms Woods described in some detail the applicant’s physical and mental presentation when talking about his grandfather’s death in 2014 with reference to the photographs, recording that he was ‘highly distressed, shaking and having difficulty breathing and swallowing’, ‘frequently stopped talking and tried to stop himself from crying’, described his mind ‘freezing’ and ‘appeared to dissociate for several minutes at a time’. While it is recorded that it was believed by witnesses in the village that the applicant’s grandfather was murdered by the CID, it is also recorded that the applicant was informed by a friend in August 2016 about the circumstances surrounding his grandfather’s death and it was only this friend, who had already fled Sri Lanka, that would openly give him information about what happened to his grandfather and that others were afraid to speak about it in fear of their safety.

  10. It is realistically possible that the Authority may have seen the information about the applicant’s suspicions upon seeing the photographs in 2014 as going some way to address its concern regarding the implausibility of the applicant not making inquiries sooner, and that it may have inferred from the report that the applicant’s suspicions were not confirmed until August 2016 when one person was willing to speak openly about his grandfather’s death and may have seen this as going some way to address its concerns about the late raising of the claim (which were also expressed by the delegate). In these circumstances, it would not be sound to rely on an adverse credibility finding made by the Authority in the substantive stage of the review, without the benefit of the report by Ms Woods, to find that that there is no realistic possibility that the Authority could have found, at the anterior stage of the review, that the report was capable of being believed and that it might have affected consideration of the applicant’s claims.

  11. Had the Authority found that the requirements of s 473DD(b)(ii) of the Migration Act were met, it would then have had to consider whether there were exceptional circumstances to justify considering the new information for the purposes of s 473DD(a) of the Migration Act. Even if the Authority was not satisfied that the new information about his grandfather’s death could not have been provided to the delegate before the decision under s 65 of the Migration Act (adopting a similar approach to that at [7] of its reasons in relation to the other information in Ms Woods’ report), there is a realistic possibility that the Authority may have found that the requirements of s 473DD(a) were met.

  12. Had the Authority found that the requirements of s 473DD were met, it would have had to consider the report in making its findings at the substantive stage of the review. I accept the applicant’s submission that there is a realistic possibility that the Authority could have reached a different decision had it considered the report by Ms Woods at the substantive stage of its review. In addition to the matters referred to at [29] and [30] above, the report, including the description of the applicant’s presentation, may have affected the Authority’s consideration of the applicant’s credibility. As identified by the applicant, the report may have impacted the Authority’s assessment of whether the body depicted in the photographs was the applicant’s grandfather, the description of the applicant’s reaction when speaking about the death of the applicant’s grandfather may have caused the Authority to find the applicant was describing a true event, descriptions of the applicant’s feelings of guilt in the report may have impacted the assessment of the genuineness of the applicant’s beliefs about relevant events and their causes, and the evidence of the applicant’s psychological conditions and symptoms may have been taken into account in assessing the applicant’s evidence more generally.

  13. I therefore find that the Authority’s error was material. Ground 1 is established. 

    GROUND 2: DID THE AUTHORITY ASK ITSELF THE WRONG QUESTION IN RESPECT OF THE DISCRETION IN S 473DC OF THE MIGRATION ACT?

  14. Ground 2 reads:

    The IAA asked itself the wrong question in considering whether to exercise its discretion to get new information pursuant to s 473DC of the Act.

    Particulars

    a.        The applicant provided new information to the IAA including new claims that:

    i.the applicant’s cousin had been involved in the LTTE;

    ii.the applicant had been sexually assaulted in detention in 2008; and

    iii.the applicant was at risk as he had been involved in a humanitarian organisation.

    b.The IAA determined not to exercise s 473DC to get new information regarding the applicant’s claims because the new information already provided did not satisfy s 473DD.

    c.The IAA asked itself the wrong question by conditioning the exercise of s 473DC on whether the new information it already had satisfied s 473DD, and/or whether it was satisfied any new information it could obtain under s 473DC would likely satisfy s 473DD.

    d.The error was material, as had the IAA correctly understood and applied s 473DC it may have offered the applicant an interview.

  15. Ground 2 relates to the applicant’s request to the Authority to invite him to attend an interview, which was made by the applicant in his submission to the Authority. The request was raised in two separate parts of the submission, in paragraphs that read (emphasis in original):

    It is also our submission that the Delegate’s decision lacks rational coherence and makes a variety of assumptions that are without factual bases, which evidence flawed reasoning, and which have shown a disregard for the substantive claims put forward by the Applicant. It is challenging to put our responses in a 5 page response per the practice direction and are concerned that this is limiting and impacting our ability to afford our client procedural fairness. Despite the consistent evidence but forward by the Applicant in setting out his claims, the Delegate has not considered key aspects of the claims and has been selective in the treatment and assessment of the evidence. On this basis, we submit that the Applicant is entitled to a hearing before the IAA as this matter presents with exceptional circumstances as defined by the Migration Act…

    …

    We also submit that the Applicant has consistently provided detailed account of events throughout his application process which strengthens his credibility as a witness. In these circumstances, due to the above mischaracterisations and inconsistencies in the findings, we submit that a hearing should be scheduled in this case so that the IAA properly understands the applicant’s claims. This is especially in light of recent information which demonstrates that the Applicant’s previous representatives have failed to put forward integral aspects of his claims to the DIBP.

  16. While the Authority will ordinarily conduct a review without inviting a referred applicant to an interview (see s 473DB(1) of the Migration Act), it does have a discretion in s 473DC of the Migration Act to get new information that it considers to be relevant, including by inviting an applicant to give new information at an interview. Section 473DC of the Migration Act provides:

    (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a)were not before the Minister when the Minister made the decision under section 65; and

    (b)the Authority considers may be relevant.

    (2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)in writing; or

    (b)at an interview, whether conducted in person, by telephone or in any other way.

  17. Both parties in their submissions on this ground have referred to Thawley J’s judgment in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17). In that case, his Honour said at [60]-[63]:

    60.The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) “new information” can, for present purposes, be summarised as follows:

    (1)Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.

    (2)In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.

    (3)Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.

    (4)The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.

    (5)The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].

    (6)The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).

    (7)The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.

    61.The appellant’s complaint is that the Authority approached its consideration of whether to exercise its discretion to “get” the “new information” by introducing a statutory hurdle which did not exist; namely that it had to be satisfied there were “exceptional circumstances” then existing which would later permit the Authority to “consider” any new information which it decided to get. The introduction of that hurdle is significant because the question of whether there were “exceptional circumstances” under s 473DD(a) might be affected by the nature and content of the material and that could not be known in any precise way because the Authority had not yet got the material – see paragraph [60(5)] above.

    62.The Authority’s reasons are to be read in a practical common-sense manner and not be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The last sentence of A[7] indicates that the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were “exceptional circumstances” within the meaning of s 473DD. That was erroneous. Whether “exceptional circumstances” exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.

    63.If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous (it is strictly unnecessary to decide that question) – the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), “exceptional circumstances” within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the “new information”. The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed “exceptional circumstances” within the meaning of s 473DD(a).

  1. The Authority addressed the applicant’s request for an interview to be scheduled at [6] of its reasons, where it said:

    In addition, the representative submits that the applicant’s previous representatives failed to put forward integral aspects of his claims to the delegate; accordingly, a hearing should be scheduled in order for the IAA to properly understand his claims. The applicant’s submission refers specifically to two issues – his 2008 torture and sexual assault and his cousin’s association with the Liberation Tigers of Tamil Eelam (LTTE) – which it claims were either not put forward and consequently, not considered by the delegate, or not adequately considered by the delegate; information was provided about each of these matters. The transcript of the applicant’s SHEV interview was included as “evidence that [the sexual assault] were not raised at any point”. I have listened to the SHEV interview and accept that the transcript is an accurate reflection of that interview. As such, it is information that was before the delegate and is not new information. Having regard to the terms of Part 7AA of the Act, and for the reasons set out below, I have decided not to invite the applicant to an interview to provide further information about his claims.

  2. The ‘reasons set out below’ referred to in the final sentence of [6] is a somewhat ambiguous expression. Both parties have treated it as relating to the Authority’s reasons as to why new information provided by the applicant did not meet the requirements of s 473DD of the Migration Act and I agree that this is an appropriate inference to draw. However, the parties differ as to the inferences that should be drawn from the content of those ‘reasons set out below’ for the purposes of understanding the Authority’s reasons at [6].

  3. The applicant submitted that the ‘reasons set out below’ related to why there were not exceptional circumstances to consider the new information that the applicant was sexually assaulted in 2008, the applicant’s involvement in a humanitarian organisation and that his cousin was involved in the LTTE. The applicant submitted that it follows from the approach of the Authority that the Authority declined to exercise its power to get new information from the applicant at an interview because the new information already before it did not satisfy the requirements of s 473DD of the Migration Act. The applicant submitted that this amounts to the Authority approaching its discretion in s 473DC by imposing a requirement that the proposed new information it already had met the requirements of s 473DD of the Migration Act before getting further information, or that it be satisfied that the new information it could obtain would satisfy s 473DD. Section 473DC contains no such limitation.

  4. The Minister treated the ground as raising the question of whether the Authority considered that the discretion in s 473DC(1) of the Migration Act was confined by a requirements that ‘exceptional circumstances’ within the meaning of s 473DD(a) of the Migration Act must exist. The Minister submitted that no such error was made in the present case. The Minister submitted that the purpose of the applicant’s request for the interview was to elaborate on two new claims that were not before the delegate. The new claims constituted new information and the Authority was prohibited from considering the new claims unless it was satisfied there were exceptional circumstances in accordance with the terms of s 473DD. The Authority found that there were not exceptional circumstances to justify considering the new information that comprised the two new claims. The Minister then said at [19] of his written submissions (footnotes omitted):

    Thus it is readily apparent that the IAA declined to invite the applicant to an interview not because it had “asked itself the wrong question” as to whether any “new information it could obtain under s 473DC would be likely to satisfy s 473DD”, but because it did not consider that any new information it could obtain under s 473DC “may be relevant”. Information that the IAA considers may be “relevant” is information of an evidentiary nature that the IAA considers “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the [IAA] might be required to make a finding in the conduct of the review of the referred decision”. Tolerably clearly, in circumstances where the reason for the applicant’s request for an interview was to elaborate on two new claims that the IAA was precluded from considering, the IAA considered that anything the applicant wished to say about these claims would have no real probative value.

  5. The Minister further submitted that this was not a matter like EMJ17 where the question of whether there were ‘exceptional circumstances’ under s 473DD(a) might be affected by the nature and the content of the material that could have been obtained under s 473DC.

  6. At the hearing, Counsel for the applicant noted the use of the word ‘further information’ at [6] of the Authority’s reasons, indicating that the Authority understood that the information the applicant may have provided at an interview could be additional to the information he provided in writing, and submitted that there were two problems with the Minister’s submission, namely:

    (a)information may be relevant for the purposes of s 473DC(1) and still not meet s 473DD of the Migration Act; and

    (b)the Authority has not reasoned that anything the applicant could have said could not have satisfied s 473DD. It only found that the claims put in writing did not satisfy s 473DD, but the claims put in writing will not necessarily be the same as the information provided at the interview, and the new information given at an interview might meet the requirements of s 473DD. There is no reason to infer that the Authority has in a hypothetical world assumed anything the applicant could say could not meet s 473DD.

  7. The submissions of Counsel for the Minister at the hearing were consistent with the Minister’s written submissions. There were two additional submissions made. First, that ‘relevance’ is a lower threshold to ‘exceptional circumstances’. Second, Counsel for the applicant referred to BCO18 v Minister for Home Affairs [2019] FCCA 1491 (BCO18) and submitted that the reasoning of Judge Driver applied by analogy in the present case.

  8. In BCO18, the Authority found that country information provided by the applicant did not meet the requirements of s 473DD of the Migration Act. The applicant argued before the Court that it was unreasonable for the Authority to obtain that information for itself under s 473DC of the Migration Act. Judge Driver rejected that submission, finding in part that it was open to the Authority to conclude that the country information provided by the applicant was not credible personal information, that it could have been provided to the delegate and that there were no exceptional circumstances to justify considering it: BCO18 at [87]. His Honour held that, having reached those conclusions, s 473DC had no further work to do because there was no point in the Authority ‘getting’ the new information of its own volition if it could not consider it, consistently with the reasoning under s 473DD: BCO18 at [88].

  9. Having regard to the submissions of both parties, I do not accept that the Authority has asked itself the wrong question in the application of s 473DC of the Migration Act in declining to invite the applicant to an interview.

  10. The Authority’s reasons for not inviting the applicant to attend an interview were twofold:

    (a)having regard to the terms of Part 7AA of the Migration Act; and

    (b)‘for the reasons set out below’, which include its findings in relation to s 473DD of the Migration Act in relation to other new information provided by the applicant.

  11. Clearly, it was appropriate for the Authority to have regard to the terms of Part 7AA of the Migration Act and neither party submits otherwise. In relation to the ‘reasons set out below’, in my view:

    (a)it was open to the Authority to have regard to its findings that the new claims raised by the applicant in writing did not meet the requirements of s 473DD of the Migration Act, in considering the exercise of a discretion to get new information that may be relevant; but

    (b)it would have been an error if the Authority had proceeded on the basis that there was a requirement that it could only exercise the discretion in s 473DC(1) of the Migration Act to invite the applicant to attend an interview if the other new information provided by the applicant met the requirements of s 473DD.

  12. This is consistent with the approach of Thawley J in EMJ17: the Authority may well have been permitted to have regard to a view that the circumstances of the case were not sufficiently exceptional to warrant inviting the applicant to an interview to provide new information, but it was erroneous for the Authority to proceed on the understanding that it could only invite the applicant to provide new information at an interview if there existed exceptional circumstances within the meaning of s 473DD(a).

  13. In the present case, I do not consider that the words ‘for the reasons below’ demonstrate that the Authority proceeded on the understanding that either:

    (a)there was a requirement that the new information the applicant had already provided met the requirements of s 473DD before it could get further information; or

    (b)it needed to be satisfied that any new information it could obtain would satisfy s 473DD before it could exercise the discretion to get new information.

  14. There is nothing in the words used by the Authority, or their context in the Authority’s reasons as a whole, that lead to any inference that the Authority proceeded on that understanding.

  15. I prefer the Minister’s interpretation of the Authority’s reasons, as set out at [19] of the Minister’s submissions and extracted at [41] above. In circumstances where the Authority had found that the new information provided by the applicant in relation to two new claims he advanced did not meet the requirements of s 473DD, those new claims were not issues to be determined in the substantive part of the review. The Authority understood the applicant’s purpose in requesting an interview to be to provide further information in relation to those two claims. It is open to a decision-maker to infer that information that relates to a matter that is not an issue to be determined in the review is not ‘relevant’. That is what the Authority appears to have done here.

  16. Finally, in relation the reliance of BCO18, the reasoning in that case is apposite to the extent that the information the applicant might have provided at an interview is the same as the information that has already been found not to meet the requirements of s 473DD of the Migration Act. However, I understand the applicant’s argument in the present case to turn on the applicant’s request for an interview having been made for the purpose of providing further new information to the Authority. The analysis above is based on that understanding of the applicant’s case.  

  17. Ground 2 is not established.

    GROUND 3: DID THE AUTHORITY UNREASONABLY FAIL TO EXERCISE, OR CONSIDER EXERCISING, ITS DISCRETION IN S 473DC OF THE MIGRATION ACT?

  18. Ground 3 reads:

    The IAA unreasonably failed to consider exercising its power to get new information under s 473DC of the Act, or unreasonably failed to exercise s 473DC to get new information as to whether the applicant’s grandfather was questioned about the applicant’s maternal uncle’s LTTE involvement and disappearance.

    Particulars

    a.The applicant claimed to be at risk of harm in Sri Lanka due to his maternal uncle (SK) having been involved in the LTTE.

    b.The applicant claimed that in 2008 upon return to his home village he was detained and questioned about his association with SK and the whereabouts of SK.

    c.The IAA noted that the applicant had not claimed that his grandfather had been questioned about SK in an around the same time.

    d.The IAA rejected the claim because it was implausible the applicant would be questioned about SK, but not his grandfather.

    e.The applicant had not, before the delegate of the Minister:

    i.provided a history of his grandfather’s experience with the Sri Lankan authorities;

    ii.been asked if his grandfather or other family members had or had not been questioned about SK by the Sri Lankan authorities;

    iii.indicated whether or not his grandfather had or had not been questioned about SK by the Sri Lankan authorities; and/or

    iv.indicated whether or not he knew if his grandfather had or had not been questioned about SK by the Sri Lankan authorities.

    f.IAA unreasonably failed to consider exercising s 473DC to get new information from the applicant as to whether or not the applicant’s grandfather had been questioned about SK.

    g.Alternatively to (f) the IAA unreasonably failed to exercise s 473DC to get new information from the applicant as to whether or not the applicant’s grandfather had been questioned about SK.

    h.The error was material as the applicant could have provided information that his grandfather was questioned about SK by the Sri Lankan authorities.

  19. This ground relates to the findings of the Authority at [24] and [25] of its reasons, where it said (emphasis added, footnotes omitted):

    24.At his SHEV interview, the applicant stated that SK had been in the LTTE but then left in 1999 of his own choice and came to live with the applicant and his mother, before rejoining in 2004 in the applicant’s stead under the LTTE’s one-member-per-family policy. I take it from his evidence that the area in which the applicant’s village was situated was under the control of the LTTE. The last LTTE stronghold in the Eastern Province was captured in July 2007. I note that the applicant’s mother lived with him in Trincomalee from 2006 until their return to the village in 2008. The applicant did not give evidence that his grandfather (who remained in the village) was ever questioned by the SLA about SK and I consider it highly unlikely that if SK was known as an LTTE fighter, the applicant’s grandfather (the father of SK) would not have been questioned by the SLA about SK sometime after the village fell to the SLA and it was only the applicant who, on his return in 2008, was subjected to adverse interest from the authorities because of that relationship. The applicant would have been of fighting age by the time he returned to his village in 2008, two years after SK left for the Vanni. In the east and north, military intelligence and other security personnel, sometimes allegedly working with paramilitary groups, were responsible for the documented and undocumented detention of civilians accused of LTTE connections. Observers reported that interrogation sometimes included mistreatment or torture following detention and other information confirms that during the war, LTTE support was frequently imputed on the basis of ethnicity.

    25.Taking into consideration the country information before me and the applicant’s evidence, I am not satisfied that the reason he was subject to detention and ill-treatment over a week in 2008 was because of his uncle SK. …

  20. The applicant submitted that the Authority had no evidence or information from the applicant as to whether his grandfather had been the subject of adverse attention or questioning due to SK once the Sri Lankan Army (SLA) took the village. The applicant submitted that the Authority failed to consider exercising its discretion in s 473DC of the Migration Act to get new information regarding the whereabouts of the applicant’s grandfather and whether he had been questioned about SK, noting that the Authority made no reference to this in its reasons, when it otherwise considered whether it should invite the applicant to attend an interview in response to the request in his submission. The applicant submitted that even if it could not be inferred that the Authority did not consider exercising s 473DC in that regard, the failure to exercise the discretion in s 473DC is unreasonable for the same reasons that the failure to consider exercising the discretion was unreasonable. The applicant provided four reasons why it was unreasonable for the Authority not to exercise, or consider exercising, the discretion in s 473DC of the Migration Act:

    (a)the Authority’s finding that the applicant’s grandfather was not questioned about SK was critical to the Authority rejecting the applicant’s claim to have a profile because of his association with SK;

    (b)the Authority effectively found the applicant’s grandfather had not been questioned about SK following 2007 in circumstances where there was no positive evidence for that proposition as the applicant had not spoken about whether his grandfather was questioned about SK;

    (c)there was no meaningful evidence to infer that because the applicant did not mention his grandfather being questioned about SK, that the questioning did not occur, noting that the applicant was not asked about this issue at his protection visa interview and there was no evidence before the Authority to suggest that the applicant and his grandfather had discussed the grandfather’s interactions with the authorities in Sri Lanka in the period after the SLA took control of the home village; and

    (d)the applicant could have provided information that his grandfather had been questioned about SK, or simply explained that he did not know whether his grandfather had been questioned and why.

  21. The Minister treated the ground as raising two inquiries: first, whether the Authority did not even consider exercising the discretion in s 473DC and, second, whether the Authority considered exercising the power or discretion and decided not to. The Minister submitted that the real issue is whether or not the Court should find that no Authority acting reasonably would have failed to invite the applicant to an interview to get new information as to whether the applicant’s grandfather was questioned about the applicant’s maternal uncle’s LTTE involvement and disappearance. The Minister submitted that legal unreasonableness is a demanding standard.

  22. The Minister submitted that the applicant’s submissions in relation to the Authority’s finding at [24] are in substance related to a ‘no evidence’ ground, but the Authority’s finding at [24] is a negative finding that something is not the fact, to which the no evidence ground does not apply. The Minister submitted that legal reasonableness did not compel the Authority to exercise its discretion in s 473DC of the Migration Act to embark on an evidence gathering exercise prior to making a finding as to the non-existence of the fact. Ultimately, it was the applicant’s responsibility to present the claims and evidence he relied on as support of his application. The Minister submitted that even if the finding at [24] is treated as a positive finding, an applicant’s failure to assert that a particular circumstance exists may provide an evidentiary basis for inferring that that particular circumstance does not exist. The Minister submitted that an administrative decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view and is usually entitled to take into account material which would not count as ‘evidence’ in a judicial context.

  23. I accept the Minister’s submissions in relation to this ground. The Authority at [24], and in the following paragraph, was considering the reason for the applicant’s detention in 2008, which it accepted occurred. The Authority noted that the applicant had not provided evidence that his grandfather had been questioned because of SK and considered it unlikely that only the applicant would be targeted because of SK and not his grandfather. In the context of the country information before it, the Authority considered that the mistreatment of the applicant in 2008 was on the basis of his ethnicity and imputed LTTE support, rather than because of SK. It was not legally unreasonable for the Authority not to seek evidence from the applicant about whether his grandfather had been questioned about SK before noting that the applicant had not provided evidence to that effect and relying on the absence of evidence in its reasons. It was for the applicant to present his claims for protection.

  1. Ground 3 is not established. 

    GROUND 4

  2. Ground 4 reads:

    The IAA’s reasons for finding the applicant had not been questioned about SK in 2008, and therefore its reasons for finding the applicant had no profile about his association with SK, were unreasonable, irrational or illogical.

    Particulars

    a.The applicant repeats and relies on particulars (a) – (e) in ground 1.

    b.The IAA’s reasons contain no rational, logical, or reasonable basis for inferring that the applicant’s grandfather was not questioned by Sri Lankan authorities about SK in and around 2007 or 2008.

  3. The applicant submitted that the Authority’s reasoning at [24] does not reveal a rational or logical path of reasoning for concluding that the applicant’s grandfather had not been questioned or subject adverse attention regarding SK. The applicant submitted that the Authority’s reasons do not explain why it inferred from the applicant’s failure to mention his grandfather been questioned about SK that the event did not occur in circumstances where the applicant was not asked about his grandfather’s historic experiences with the authorities, the applicant did not discuss his grandfather’s experiences with the authorities and there was no evidence the applicant would know if his grandfather was questioned and about what. In his oral submissions, Counsel for the applicant accepted that if the Authority’s finding is simply that there is no evidence that the applicant’s grandfather was detained in relation to SK and, in the absence of such evidence, it could not be satisfied that the application was detained in relation to SK, that would not be illogical or irrational. Counsel for the applicant accepted that to succeed on this ground, the Authority’s finding would need to be interpreted as a finding that the applicant’s grandfather had no profile in this regard based on the omission of the evidence from the applicant in circumstances where it is not clear that the applicant would ever have known about it.

  4. The Minister submitted that the logical link between the applicant’s failure to assert a fact and the Authority’s finding as the as to the non-existence of that fact is apparent enough. It is not a connection that no rational or logical decision-maker could rely on in arriving at the relevant decision on the evidence before the decision-maker and some probative material or other logical basis for a fact finding by the Authority was sufficient. The Minister submitted that the use of expressions such as irrationality in this ground is no more than to strongly emphasise disagreement with the Authority’s process of reasoning on an issue of fact, which does not establish jurisdictional error.

  5. Again, I accept the Minister’s submissions in relation to this ground. I do not interpret the Authority’s finding at [24] as a positive finding that the applicant’s grandfather was not questioned about SK or that the applicant’s grandfather did not have a relevant profile. Rather, the Authority’s finding is to note the absence of evidence of a fact. The Authority’s reasoning was not illogical or irrational in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135].

  6. Ground 4 is not established.

    CONCLUSION

  7. I have found that the applicant has established jurisdictional error in the Authority decision by ground 1 of the application. I issue a writ of certiorari to quash the Authority decision.

  8. It is also appropriate to issue a writ of mandamus to require reconsideration of the matter. The Authority no longer exists and Part 7AA of the Migration Act has been repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Rule 11(3) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) provides that anything the Court could have previously done in relation to the Authority, including remitting the decision for reconsideration, may be done in relation to the Administrative Review Tribunal. It is therefore appropriate that the writ of mandamus be directed to the Administrative Review Tribunal.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       14 November 2024


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