GJM18 v Minister for Immigration - [2020] FCCA 632

FEDERAL CIRCUIT COURT OF AUSTRALIA

GJM18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 632

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise Visa (SHEV) – whether the Authority failed to admit and consider documents in their decision – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) – whether the Authority acted illogically and unreasonably – whether the Authority failed to give active intellectual consideration and failed to consider integers of the applicant’s claims – whether the Authority erred in finding the claims made by the applicant regarding his sister irrelevant – whether the Authority failed to exercise its discretion to get further information under s 473DC of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.5H, 5AAA, 36, 473, pt.7A

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Aon Risk Services Australia Ltd v Australian National University (2009) 239

CLR 175

AUF18 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCAFC 222

BOS17 v Minister Immigration and Border Protection [2020] FCA 75

BVD17 v Minister Immigration and Border Protection [2019] HCA 34

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

BWO18 v Minister for Home Affairs [2020] FCCA 329

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203

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

DFY18 v Minister Immigration, Citizenship, Migrant Services and Multicultural

Affairs [2020] FCA 169

EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20

FJW17 v Minister for Home Affairs [2019] FCA 881

Minister for Immigration and Border protection v Eden (2016) FCR 158

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Border Protection v SZMTA (2019) 26 CLR 421

Randhawa v Minister for Immigration. Local Government and Ethnic Affairs

(1994) 52 FCR 437

Applicant:

GJM18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3427 of 2018

Judgment of:

Judge Humphreys

Hearing date:

19 March 2020

Date of Last Submission:

19 March 2020

Delivered at:

Parramatta

Delivered on:

19 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Schipp

Solicitors for the Applicant:

Australian Presence Legal

Solicitors for the Respondents:

Ms Morris, Clayton Utz

ORDERS

The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Grant leave for the applicant to rely on amended grounds of appeal filed 19 March 2020.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3427 of 2018

GJM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a Sri Lankan national of Christian faith and Tamil ethnicity from Mannar, in the Northern Province. The applicant first arrived in Australia by boat at the Cocos Islands on 7 September 2012. The applicant travelled with his father.
On 14 March 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV). On 9 February 2018, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the SHEV application.
The applicant sought merits review in the Immigration Assessment Authority (“the Authority”). In a decision dated 8 November 2018, the Authority affirmed the delegate’s decision not to grant the applicant the visa.
The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority’s Decision

Paragraphs 2 to 11 of the Authority’s decision deal with new information which was provided to the Authority by the applicant. At paragraph 3 of its decision, country information, which predates the delegate’s decision, is rejected.
At paragraph 4 of its decision, the Authority rejects an International Truth and Justice Project (“ITJP”) report and an associated media article, as the report was published before the delegate’s decision and the media article is an interview with the author of the report and does little more than publicise its release.
At paragraph 5 of its decision, a letter provided by the applicant from the Bishop of Mannar, dated 15 March 2018, is considered. The letter concerns events that took place some years earlier to the date of the letter. The Authority finds that while the letter goes some way towards corroborating the claim that the applicant and his father were asked to smuggle items for the Liberation Tigers of Tamil Eelam (“the LTTE”), it also states that this included weapons, a claim not previously made by the applicant. The Authority determined that the applicant never claimed that he and his father were also suspected by authorities for carrying weapons for the LTTE, as stated in the letter. The Authority considered that the latter statement was not credible, having accepted in any case, that the applicant and his father smuggled goods for the LTTE. The Authority was not satisfied that exceptional circumstances existed to justify considering this letter.
At paragraph 6 of its decision, the Authority notes that on 21 May 18, the applicant provided further information to it, in the form of documents, translations and letters. At paragraph 7 of its decision, a letterhead of the Presidential Commission to Investigate Complaints Regarding Missing Persons is rejected, as it is in Tamil and no translation has been provided. Documents in a letter on the letterhead of the International Red Cross (IRC) refer to a named missing person. The relationship of the person named to the applicant is not apparent and no explanation has been provided about the relevance of these documents to the applicant’s claims. As its relevance or significance is not apparent, it was rejected by the Authority.
At paragraph of its decision, the Authority notes a letter signed by the Grama Niladhari (GN), was included. This letter states that the applicant is wanted by authorities for aiding and abetting the LTTE and lists 12 people who have disappeared. The relevance of the latter part of the letter of the applicant’s claims, is not clear. The Authority was satisfied that exceptional circumstances exist as to consider the letter from the GN.
At paragraph 9 of its decision, the Authority notes three letters in English that were provided before it. Whilst dated 7 March 2018, the contents concern events that occurred some years earlier. No explanation is given into the delay in getting these letters. At paragraph 10 of its decision, the Authority notes that it was not satisfied the letters meet the requirements of s 473DD(b) of the Migration Act 1958 (Cth) (“the Act”) and there are additionally no exceptional circumstances to justify considering the new information.
At paragraph 11 of its decision, the Authority notes in accordance with s 473DC(1) of the Act, new country information, being the most recent Department of Foreign Affairs and Trade (“DFAT”) country information, has been obtained. The Authority was satisfied that exceptional circumstances existed to justify considering that new information.
The applicant’s claims are set out at paragraph 12 and may be summarised as follows:
·In 2006, when the applicant and his father were fishing, a boat of the LTTE approached them and took them into an area controlled by the LTTE. The applicant and his father were detained and asked to join the LTTE. The applicant and his father refused but were released on condition they would bring food and medicine to the LTTE. For many years the applicant and his father took food and medicine to the LTTE using his father’s fishing boat
·The applicant was abducted by the LTTE in November 2006. After a month the applicant found a way to escape and walked home.
·In mid-2007, during a fishing expedition with the applicant’s father, they were approached by an LTTE boat and detained. The applicant’s father agreed to give the LTTE members kerosene. The applicant and his father regularly provided items such as food, medicines, bandages, bandages, petrol or kerosene to the LTTE for about a year until the war ended.
·One of the applicant’s distant relatives avoided rehabilitation. However, the relative was later arrested by the army, went through rehabilitation but later disappeared.
·The army went to the home of three local Tamil people for inquiries and they disappeared. The applicant and his father escaped from the area where they resided, as they were worried they would also disappear. The applicant is fearful of being attacked or prosecuted unfairly because of an ammunition dump found near their house.
·The applicant is also fearful of being seen as an LTTE supporter or cadre because their land was used by the LTTE during the war.
·The applicant’s sister was detained by the army for three days, raped and brought back to the applicant’s family in 2007.
·The applicant relies upon the claims made in his father’s written SHEV statement.
At paragraph 15 and 16 of its decision, the Authority accepts the applicant’s identity, that he is a citizen of Sri Lanka, of Tamil ethnicity and Christian faith. The Authority accepts that the applicant and his family were displaced on two occasions, during the war, being 1990 and 2006.
Paragraphs 17 to 19 of the Authority’s decision deal with claims by the applicant of being captured by the LTTE. The Authority noted that there were discrepancies between two statements provided, in support of his application. The first is undated and was submitted with the applicant’s SHEV application on 14 March 2016. The second makes other claims and also asked that the applicant’s father statement of the same date, being 31 March 2017, be considered.
At paragraph 18 of its decision, the Authority notes that in the applicant’s SHEV interview, he did not repeat the claims in the first statement about he and his father being taken by the LTTE to a LTTE controlled town, being asked joined the LTTE but released conditionally and that they bring food and medicine to the LTTE. The applicant and his father claim that they did this for many years. In view that no further evidence was provided about the claims and the failure to press them at the applicant’s SHEV interview, the Authority was not satisfied as to the incidents referred to in the first statement occurred.
In relation to the claim that the applicant was captured by the LTTE in November 2006, escaped and returned home after a month, the Authority notes that while the father’s statement refers to such an incident, the applicant did not refer to this incident in his SHEV interview, notwithstanding the delegate repeatedly questioned the applicant about his connections to the LTTE. In light of the applicant’s failure to press this claim in his SHEV interview, the Authority was not satisfied that the incident took place.
Paragraphs 20 to 31 of the Authority’s decision deal with other claims or matters referred to in the applicant’s father’s statement. At paragraph 20 of its decision, the Authority does not accept that the LTTE had a camp on the family’s land. The applicant did not refer to this very significant claim in either of his previous interviews with the Department. When the delegate put this to the applicant in his SHEV interview, the applicant came up with a number of “unpersuasive reasons why he had not previously referred to it, including, most implausibly, that he did not think that the LTTE was involved in armed conflict”.
This assertion was regarded as being improbable, given that the applicant has never claimed, given that he was a fighting age at the time, to have experienced some form of interest including questioning and detention at the time from the Sri Lankan Army (“the SLA”). The Authority was prepared to accept that there was an LTTE camp near the family’s property and that the applicant’s family may have had some interactions with personnel at the camp, but was not prepared to accept that the training camp was on the applicant’s family property. Accordingly, the Authority was not satisfied the applicant was at risk of being seen as an LTTE supporter or cadre. It further followed that the Authority did not accept that the family house was destroyed by the SLA, as punishment for the LTTE’s presence.
At paragraph 21 of its decision, the Authority was prepared to accept that the applicant’s mother did some cooking for the LTTE, who were located nearby. At paragraph 22 of its decision, the Authority accepts that the applicant and his father smuggled some goods (kerosene, petrol, medicine, and bandages) for the LTTE in or around 2008 for about a year.
At paragraph 24 of its decision, the Authority deals with claims that the applicant had been able to bribe officials to overlook his association with the LTTE through smuggling goods, by offering bribes of Arak or soda to these officials.
At paragraph 25 of its decision, the Authority considers the letter provided by the GN, which provides some corroboration for the applicant claims he is wanted by Sri Lankan authorities for aiding and abetting the LTTE. The statement by the GN that the applicant is “stringently wanted” by the authorities in Sri Lanka, is assessed as no more than a bare assertion with no supporting details. It is insufficient, in the Authorities view, to overcome what was considered to be very serious problems, in the applicant’s evidence on whether the authorities were ever aware of his smuggling activities.
The Authority notes, that if Sri Lankan authorities were aware of the applicant’s activities, there were more than adequate opportunities from the years 2008 to 2012 to question the applicant. There is no evidence before the Authority that they did. The Authority does not accept the applicant was ever caught with goods intended for the LTTE, or that he was able to bribe his way out of the situation, as discussed above, or that he is currently wanted for aiding and abetting the LTTE.
At paragraph 26 of its decision, the Authority accepts that, after the war, the applicant did not admit to his support for the LTTE or surrender to authorities because he thought he would be tortured, that he was worried about being informed on, or that a distant relative avoided rehabilitation but was later arrested, went to rehabilitation but later disappeared. The Authority accepts that forced disappearances and abductions were reported throughout Sri Lanka, particularly from areas formerly controlled by the LTTE and many persons remain unaccounted for.
At paragraph 27 of its decision, the Authority accepts the claim set out in the applicant’s father’s statement regarding restrictions, harassment and checking to which Tamil fishermen were subject to. At paragraph 28 of its decision, the Authority notes that notwithstanding the general atmosphere of suspicion, the harassment, disappearances, questioning and other like treatment by security forces, nothing happened to the applicant. The Authority considered the claim that the applicant’s smuggling activities may be the subject denunciation by people in his village to the authorities was speculative.
At paragraph 29 of its decision, the Authority notes that the applicant made a new claim that he been staying in other places and that he had been asked to come to the police station and when he went, police warned him to be careful and not to come to the station in future, as the SLA had taken others, they may take him as well. The Authority considered this claim to be implausible.
Paragraphs 30 to 31 of the Authority’s decision deal with the claim in relation to the ammunition found near their house. The Authority noted there continued to be reports of weapons caches being found by Sri Lankan authorities in the north of the country. The Authority noted that there was no credible evidence before it to suggest that ammunition was found either near the applicant’s home, or on their family property. The applicant’s evidence was that ammunition had been found close to the village library, which is about 750 to 800 metres from their house.
The Authority did not consider it plausible that authorities would target the applicant or seek to prosecute him for a weapons cache found in the village up to 800 metres from his home. If, as the applicant’s claimed, a second weapons cache was found on his family property, the Authority would have expected members of the family to have been questioned about it. No such claim has been made. The Authority was not satisfied that ammunitions or weapons were found near or on the applicant’s family property in 2016 and again in 2017.
At paragraph 32 of its decision, the Authority was prepared to accept that the applicant’s sister was raped by a member of the Sri Lankan security forces. The Authority was not satisfied however, that this had relevance to the applicant’s claims for protection.
Paragraphs 35 through to 47 of the Authority’s decision deal with claims relating to the applicant being a Tamil male from a northern province in Sri Lanka, with an imputed political opinion favourable to the LTTE. The Authority noted that as at the date of its decision, being 2018, the applicant had been away from Sri Lanka for five years. The applicant submitted that there remain serious unaddressed issues in Sri Lanka (including torture, white van abductions, human rights violations and war crimes) and a culture of impunity of the security forces remains intact.
The Authority referred to country information that it had before it and concluded that at paragraph 43 of its decision, this did not support a conclusion that Tamils or Tamil men from former LTTE controlled areas, faced a real chance of serious harm at the hands of Sri Lankan authorities.
At paragraph 46 of its decision, the Authority accepts that the applicant and his father were subject to a pass system that required them to obtain permission from the Sri Lankan Army or Navy when fishing. The applicant’s evidence was not sufficient to suggest that he was unable to maintain and support himself through his previous work as a fisherman. The Authority was satisfied that country information does not indicate that Tamil fishermen, at that time, were vulnerable to being assaulted or beaten by the SLA during security checks as they were under the previous government. The applicant did not claim that he would be unable to support himself or his family if he returned to Sri Lanka and that he would be otherwise unable to subsist.
At paragraph 47 of its decision, the Authority concluded that the applicant did not have a profile that available country information suggested was such, that he would be at risk of harm, now or in the foreseeable future, on the basis of his or his family’s assistance to the LTTE, including smuggling and cooking, his imputed political opinion, the applicant’s or his father’s occupation or as a Tamil male from the north or for any other reasons claimed.
Paragraphs 48 to 55 of the Authority’s deal with the applicant’s illegal departure and issues relating to his return as an asylum seeker. The Authority accepted that the applicant had left Sri Lanka illegally and that he would be arrested and charged at the airport for an offence under the Sri Lankan Immigrants and Emigrants Act 1949. This could involve being held for up to 2 days at an airport holding cell, before being placed before a magistrate. The Authority noted that a guilty plea will result in a fine which can be a paid by instalments and the person is free to go. If the person pleads not guilty, they will be granted bail by the Magistrate on the basis of personal surety or guarantee by a family member. The Authority was not satisfied this would amount to serious harm.

The Authority was satisfied that if the applicant returned to his home area, he would be able to re-establish himself without suffering harm in relation with a housing or employment. The Authority accepted it was possible the applicant may be monitored for a period of time and may experience some social stigma as a returning asylum seeker/refugee. The Authority was not satisfied that this would amount to serious harm.
Accordingly, the Authority was not satisfied the applicant met the requirements of the definition of a refugee in s 5H(1) of the Act and did not meet s 36(2a) of the Act
Paragraphs 57 to 63 of the Authority’s decision deal with complimentary protection considerations. For similar reasons as outlined above, the Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of a person being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm.
The Authority concluded the applicant did not meet the criteria under

s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the delegate’s decision not to grant the applicant’s protection visa.

Grounds of Appeal

An initial application with 13 grounds of review was filed on 6 December 2018. Subsequently, in accordance with the Court’s orders of 13 November 2019, an amended application which removed one particular of ground 1, deleted ground 13 and added a new ground, was filed on 6 January 2020.
On 5 March 2020, in the outline of the applicant’s submissions, the applicant purported to “further refine” the amended application of 6 January 2020 to 5 grounds, which appear to mirror grounds 1, 2, 5, 10 and 14 of the amended application and to include a new ground (ground 5 - s 473DC of the Act, of the further amended application) and a new sub- ground (the November 2006 claim, in ground 2(c), of the further amended application).
The applicant on 13 January 2020, also filed two affidavits of Samuel Worrad and Shamili Kugathas. These further amended grounds of the application were not formally filed with the Court until 19 March 2020, being the morning of the substantive hearing of the matter.
Notwithstanding the belated service of the further amended application, the first respondent did not object to leave being granted to the applicant to rely on grounds 1, 2(a-b), 3, and 4, on the basis that they merely refine grounds in the amended application.
The first respondent however, did object to leave being granted to rely upon grounds 2(c) and ground 5, given that they were not previously pleaded, despite the applicant being represented by the same legal representative at all times during the proceedings. The first respondent noted that the applicant had failed to provide any explanation for these additional grounds not being included in the amended application, filed in January 2020. The first respondent does not object to the affidavit of Samuel Worrad. The first respondent objects to the affidavit of Shamili Kugathas, on the basis of relevance and the correctness of certain matters depose therein.
The first issue that needs to be determined is whether leave should be granted to rely upon the purported new grounds of appeal contained within the applicant’s submissions and filed on the morning of the hearing. There seems to be an assumption within some areas of the profession that in migration matters, the normal rules of case management do not apply, in that applicants are free to seek to raise new grounds up to and including the day of the hearing. This causes significant additional work to both the first respondent and the Court. It bespeaks a lack of diligent, timely preparation in relation to matters, notwithstanding Court orders that facilitate the filing of amended grounds, given the passage of time between when the matter may be initially lodged with the Court and when it comes on for hearing.
No real explanation has been provided as to why these new grounds should be considered by the Court. It is seemingly assumed the Court will allow these amendments. The first respondent objects, not unreasonably, to these grounds being relied upon. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the High Court emphasised the need for case management principles to be considered in circumstances where amendments are sought to pleadings. These considerations include the extent of the delay in seeking to amend, costs associated with the delay, prejudice to the opposing party if leave were to be granted, the nature and importance of the amendment to the party applying, the point the litigation is reached, relative to the trial commencement date, prejudice to other litigants awaiting trial dates and proposing parties explanation of the delay in applying for the amendment.
In oral submissions, Counsel for the applicant stated that they seek to further “refine the application”, in accordance with the new amended grounds, which is generally a reduction of the previous claims, with the exception of the s 473DC of the Act ground, which arises out of an alleged earlier pleaded matter.
With some reluctance, noting that Counsel appearing for the first respondent has been able to apply themselves and provide submissions, including in relation to the grounds of objected to, the Court proposes to grant leave to reply upon the further amended grounds of appeal. In doing so however, the Court would state that it should not be assumed that leave will always be granted and where it is, there may be costs consequences where work is either thrown away or additional work at a late stage is required by the first respondent in dealing with these late amended grounds. In appropriate cases, personal costs orders against the applicant’s legal representatives will be considered.
The grounds with amendments as pleaded, are as follows verbatim:
1) The IAA failed to admit and consider the following documents and otherwise misapplied s473DD:
a) ITJP Report, “Silenced: survivors of torture and sexual violence in 2015” January 2016
b) ITJP report “Unstoppable: 2016/2017 Torture in Sri Lanka” July 2017
c) Letter from Most Rev Dr Emmanuel Fernando, Bishop of Mannar, Sri Lanka, 15 March 2018
d) Letters from Presidential Commission to investigate into complaints regarding missing persons
e) Letters from the International Committee of the Red Cross
f) Letters from Grama Niladhari, 5 March 2018
g) Letter from Federation of Community-based Organisations, Mannar District, 6 March 2018
h) Letter from S Ponniaiah, Justice of the Peace, 7 March 2018
i) Letter from T Vinaothan, Attorney at law, 7 March 2018
2) The IAA acted illogically and unreasonably, failed to give active intellectual consideration and failed to consider integers of the Applicant’s claims:
Particulars:
a) In determining that the incidents referred to in the Applicant’s first (undated) statement did not occur,
b) In determining that the incidents referred to in the Applicant’s father’s statement did not occur,
c) In determining the incident on November 2006 did not occur
3) The IAA erred in finding that the rape of the Applicant’s sister was irrelevant to the Applicant’s claim, and thus failed to consider an integer of the Applicant’s claim.
4) The jurisdiction of the IAA miscarried in that the Secretary failed to:
a) Provide documents to the IAA pursuant to s473CB(1)(b)
b) Consider what documents were relevant to the IAA review, and
c) Provide the IAA with all relevant documents under s473(1)(c)
5) In the alternative, the IAA failed to consider whether to exercise its discretion to get further information under s473DC, or if it did so consider, it failed to do so reasonably.

The Applicant’s Submissions

Lengthy written submissions that exceeded the Court’s 10 page prescribed limit, as set out in the Courts Orders of 13 November 2019, were filed. These were supplemented by lengthy oral submissions.

Ground 1: Section 473DD of the Act

Counsel for the applicant submitted that the Authority adopted an unreasonably narrow interpretation of s 473DD of the Act.
In relation to the International Truth Justice Project (“the ITJP”) reports, it was submitted that the Authority determined that the information was not “personal credible information” that could have been provided earlier and there were no exceptional circumstances. Counsel for the applicant submitted however, that “personal credible information” does not mean personal to the applicant. The information clearly relates to specific people. Further, in determining that they were no exceptional circumstances, no reasoning is provided. If s 473DD(a) and s 473DD(b) of the Act were the only matters considered, this would be an overly narrow approach.
In relation to the letter from Dr Fernando, the Authority notes that although the letter itself could not have been provided earlier, the information was known earlier. Counsel for the applicant submitted that this is an incorrect approach and one which would preclude almost all information submitted under s 473DD of the Act. It was submitted that this is similar to suggesting that the phrase “was not previously known” in s 473DD(b)(ii) of the Act, means “known by the applicant”. That position is not good law.
In any event at paragraph 8 of its decision, the Authority inconsistently determined that a document suffering from a similar perceived defect should be considered.
In regard to the International Committee of the Red Cross (“the ICRC”) letter, Counsel for the applicant submits that the Authority rejected the document on the basis that there was no apparent relevance to the claim. On its face, the document relates to a person who ‘disappeared’ from the Mannar region before September 2012. The applicant made claims of fear of disappearing. The document is clearly relevant.
In regards to the letter from the Federation of Community based Organisations (“the FCBO”) Mannar, Counsel for the applicant submits that the Authority complains the document only refers to the father’s name correctly and spells the applicant’s name incorrectly. The Authority relies upon the word ‘teenage’ to dismiss the letter as not credible. The applicant says he assisted his father as a fisherman from a young age. Even if the writer was only familiar with the applicant’s father, the information would still be relevant to the applicant. The approach of the Authority was incorrect.
As regards the 2 letters of 7 March 2018, Counsel for the applicant submits that the Authority dismisses the documents for a perceived lack of credibility, because although they corroborate the applicant’s claims, they ‘go further’. The documents should have been considered. Further, there are no reasons as to the ‘exceptional circumstances’. The lack of reasons is analogous to the error identified in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”).
The failure to consider the documents deprived the Authority of the ability to consider important corroborative material, which could have affected the credibility of the applicant and the final outcome.

Ground 2: Unreasonableness

Counsel for the applicant submitted that the Authority’s finding at paragraphs 18 to 39 of its decision, were legally unreasonable on the basis that the applicant did not refer to them in both his statements or they were not expanded upon at his SHEV interview.
At no point was the applicant advised that if he did not refer to each of the complaint of harassment at each occasion, they would be disregarded. The failure to otherwise engage with these claims, was a failure to give actual intellectual consideration to those claims.

Ground 3: The Applicant’s sister’s sexual assault

The applicant notes that the Authority accepted the applicant’s sister was raped by Sri Lankan security forces. In considering the relevance of the matter, the Authority stated that the “applicant has not made any claims that this incident has any repercussions for him”. Counsel for the applicant submits that this is an incomplete assessment of the matter. The fact that the rape by security forces is capable of being corroborative of the family profile and LTTE links by the applicant’s family, noting that the applicant claimed his father, younger brother and mother all had involvement with the LTTE. This aspect was not considered.

Ground 4: Materials provided by the Applicant’s father

Counsel submits that the applicant’s case was closely linked to that of his father. During the course of the applicant’s interview, he made specific reference to a video being taken by his mother of the digging up of a former female LTTE camp. The applicant indicated that his father would show it to the delegate and he wanted it taken into account in his own case.
It is clear that the father did show the video, but there is no suggestion that the video was considered in the applicant’s case. The applicant does not have possession of the video. It is clear the interviewer did not take the video from the father. Counsel for the applicant submits that the Authority was required to assess the video under s 473CB of the Act and for it to be included in the materials referred to the Authority.
Counsel for the applicant suggests that the Secretary must conduct a reasonable search for ‘potentially relevant material’. The video may have led to the finding that there was an LTTE base on the applicant’s families land. This may have affected the findings of adverse credit as to the applicant and may have led the Authority to accept other parts of his evidence. Thus the video could have affected the outcome and was material.

Ground 5: Section 473DC of the Act

Had the Authority had access to the video, it may have wanted to invoke s 473DC(3) of the Act, to ask for an explanation of it. If the Court finds that the video was ‘not provided’ under s 473CB of the Act, the Authority could have used its discretion to get new information about the video. Placed in its proper context, this would have been ‘new information’. Counsel for the applicant submits that it was unreasonable for the Authority to fail to seek an explanation or clarification. It is submitted these failures were material.

The First Respondent’s Submissions

Ground 1

Counsel for the first respondent submits that there was no error in the Authority’s consideration of and rejection of the new information under s 473DD of the Act.
Counsel for the first respondent submits that ground 1(a) is misconceived. The Authority did not treat the 2015 ITJP report as new information nor rejected it under s 473DD of the Act, rather it recognised that this report was “included with the submissions…before the delegate” and was therefore not new information. Indeed, the Authority also expressly referred to that report in its reasons.
Counsel for the first respondent submits that contrary to the pleaded ground 1(b), the Authority was correct to find that the 2017 ITJP report was not personal information as it was simply a report “about the practice of torture and persecution in Sri Lanka” and was not a report about identified person’s (see BOS17 v Minister Immigration and Border Protection [2020] FCA 75 at [59]). In this case, the report was no more than generic country information, which could have been provided by the applicant to the delegate, the relevance of which was neither explained by the applicant nor apparent on the face of the document and as to which, no submissions were advanced in support of its satisfying s 473DD of the Act.
Counsel for the applicant submits that contrary to the pleaded ground 1(c), there is no basis for the applicant’s assertion that the Authority applied an incorrect approach in assessing the Dr Fernando’s letter. The Authority observed that the letter’s content concerned event some years before the delegate’s decision, consideration was directed to the question of whether it could have been provided to the delegate, before the decision and not whether it was “previously known” to the applicant or delegate.
Counsel for the first respondent submits that it was open to the Authority, in that context, to take account of the fact that whilst the specific letter, being dated after the delegate’s decision, could not have been given to the delegate, a letter of that kind containing the information within it, could have been given to the delegate (see FJW17 v Minister for Home Affairs [2019] FCA 881 at [47-49]). The Authority carefully assessed the content of the letters, which resulted in it being satisfied that there are exceptional circumstances for the acceptance of the GN letter but not the others. Counsel for the first respondent further submits that, contrary to the applicant’s assertion, the Authority did not purport to conduct a “full examination” of the document, it simply tested the document “as to consider for itself whether or not it satisfied as to the truth of the new information”, which it was entitled to do.
Counsel for the first respondent submits that ground 1(d), the applicant, in essence, is impermissibly seeking to provide this Court with an explanation of the relevance of the ICRC letter, which the applicant had earlier failed to provide to the Authority and on the basis of that explanation, invites the Court to find error on, but on the part of the Authority. There is no basis for allowing the applicant to do so. The Authority did not err in rejecting, under s 473DC of the Act, a document which bore no apparent relevance to the applicant and in respect of which the applicant had made no attempt to explain its relevance (see CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 (“CDZ17”) at [10]).
Counsel for the first respondent submits that grounds 1 (e-g) in essence, amount to an impermissible attempt to cavil with the merits of the Authority’s assessment of the relevance of the material and its satisfaction of

s 473DD of the Act. The Authority gave clear, cogent and logical reasons for concluding that the material could have been obtained and provided earlier and for doubting the truthfulness of that information. Furthermore, the reasons given in respect of s 473DD(a) of the Act, were adequate and simply reflected the fact that the applicant had put forward no explanation to justify “a departure from the general prohibition on the consideration of new material” (see CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [83] and [91]).

Ground 2

Counsel for the first respondent submits that this ground, in essence, is no more than an impermissible attempt at merits review, under the guise of “legal unreasonableness”. It is to be recalled that “within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a generally free discretion”. The Court’s task is not to “substitute its own view as to how the decision should be exercised for that of the decision-maker” nor to “remake the decision according to its own view of reasonableness” (see Minister for Immigration and Border protection v Eden (2016) FCR 158 at [59] and [62]).
Counsel for the first respondent submits that the essence of the applicant’s complaint of legal unreasonableness, is that it was, for some unexplained reason, inappropriate for the Authority to take into account the inconsistent manner in which the applicant had presented his claims and/or, that the Authority had, in some unidentified matter, failed to give genuine realistic and proper consideration to these claims. Contrary to the applicant submissions, the Authority had taken account of not a mere failure by the applicant to “expand” on earlier claims, or a mere failure to include claims in both written statements, but rather a complete failure to press those claims at the SHEV interview despite, as noted in the decision, the delegate “repeatedly questioning the applicant about his connections to the LTTE to ensure he had disclosed all of his own and his family’s involvement with the LTTE”.

Counsel for the first respondent submits that the Authority found the applicant had not made out his claims and that conclusion was open to it. The applicant had been clearly informed of the need to put forward complete information as the claims he wished to be considered (see DFY18 v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169 at [16]). Relevantly, the delegate had made similar findings to the Authority of those issues, rejecting such claims on the basis of failure to advance them at the interviews and their implausibility.
Counsel for the first respondent submits that is also relevant the applicant has sought to rely, in isolation, only on three findings made by the Authority, rather than take into account the decision when read as a whole. The Authority’s consideration of the applicant’s claims relating to the LTTE and past harm, were detailed and expansive. Such reasons, on their face, demonstrate the Authority clearly considered each of the claims raised by the applicant, gave genuine proper and realistic consideration to each of them and provided a sufficient logical evidentiary and intelligible basis for its decision.

Ground 3

Counsel for the first respondent submits that this ground is no more than the bare assertion of error and an attempt at impermissible merits review, based on a misstatement of the claims as advanced by the applicant. At no previous stage did the applicant contend that the incident concerning his sister, was indicative of any actual or imputed LTTE profile. Rather, it was described as occurring during an “Army Roundup” where it was said to be common for the mistreatment of women to occur. The Authority noted that no claims have been advanced by the applicant that this incident would amount to serious or significant harm to him, or that it would have “ongoing repercussions” for the applicant or his family. The Authority’s reasons reflect the brevity of the claim presented. No error is demonstrated.

Ground 4

Counsel for the first respondent submits that this ground proceeds upon a misunderstanding and misstatement of the relevant statutory framework and is an impermissible attempt to invert the obligations imposed upon applicants and decision-makers.
Firstly, Counsel for the first respondent submits that the applicant has advanced no evidence in support of the contention that he “provided” the video to the delegate at any stage so as to enliven the obligation under s 473CB(1)(b) of the Act. This is an ordinary question of fact and therefore, the applicant bears the onus of proof (see Minister for Immigration and Border Protection v SZMTA (2019) 26 CLR 421 at [41] and [46]). In the absence of such evidence, the Court should conclude that the video was never provided and thus the obligation enlivened.
Secondly, Counsel for the first respondent submits that there is no evidence advanced to support the contention that the applicant’s father “provided” the video to the Minister at any stage, such that it could be said the video was in the “Secretary’s possession and control”. Again, the applicant bears the onus of proof. The applicant appears to invert the statutory obligation set out in s 5AAA of the Act, suggesting that, contrary to that provision, the obligation is on the Secretary to source evidence for the applicant. Counsel for the first respondent submits that the inference which the Court should draw, is the video was never, at any time provided the department by any person and was therefore never at any time in the “Secretary’s possession or control”.
Finally, Counsel for the first respondent submits that the applicant has also advanced no legal basis for the suggestion that, simply because the applicant’s father, in the course of an entirely separate and independent protection visa application process before a different interviewer, showed a video to his interviewer, this can somehow enliven an obligation on the part of the Secretary to this applicant. The cases relied upon by the applicant in this regard are entirely inapposite. In AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222 at [2], concerned an applicant who had himself previously provided documents to the Department, being documents that could have been identified had a search been done of the Department’s electronic database, using the applicant’s role number or boat identification. It does not stand for the proposition that the Secretary is obliged to seek out from an applicant, let alone from someone other than the applicant, documents which the applicant himself suggested that he would provide to the Secretary and subsequently failed to provide.
Further, Counsel for the first respondent submits that the mere fact that the same individual determined both the applicant and the applicant’s father’s protection visa applications, noting in this regard that the interviewer in each case was different. The Authority had before it the applicants father’s SHEV statement and interview and that the applicant referred to his father having the video, having shown it the course of his own separate interview, can have no possible relevance to determining whether the applicant provided the video to the delegate or whether the Secretary had the video in his possession or control.
Counsel for the first respondent submits that the applicant submissions further ignore the fact that the applicant himself stated that it was “very hard to kind of tell by looking at the video, of…of what actually took place” and it was for that reason that he had not bought the video along himself and that he “wasn’t even planning to talk about this” and “wasn’t even planning on submitting this as a claim. Um I just started talking about it” (see Affidavit Samuel Worrad pages 39 - 43)
Counsel for the first respondent submits that the applicant has wholly failed to establish that s 473CB of the Act was enlivened in the present case, let alone that it was breached.

Ground 5

Counsel for the first respondent submitted that the applicant’s alternative contention based upon s 473DC of the Act, is likewise misconceived. Firstly, first respondent notes that the applicant has misstated the proposition made in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42] and [51]). The Court was considering an entirely different issue, namely, if a breach of

s 473CB(1)(c) of the Act, was in that case material.
It was in that context that the Court observed that, had there been no breach of s 473CB(1)(c) of the Act, it was possible the Authority, upon considering the documents properly, referred to it under s 473CB of the Act, might have reached a different conclusion and likewise might have wished to exercise s 473CB(1)(c) of the Act.
Secondly, Counsel for the first respondent submits that the Authority is not obliged to give reasons for the non-exercise of procedural power such as s 473DC(3) of the Act and it cannot therefore be inferred that the authority failed to consider exercising that discretion (see BVD17 v Minister Immigration and Border Protection [2019] HCA 34 (“BVD17”) at [16] and [40]).
Finally, Counsel for the first respondent submits that the applicant’s contention wholly failed to recognise first, the obligation imposed upon the applicant, under s 5AAA of the Act, to specify all claims and provide sufficient evidence to establish them. Second, the presumption is under Part 7AA reviews, that the Authority will proceed without accepting or requesting new informational or interviewing the applicant. Third, the context in which the video was briefly mentioned. Fourth, that the applicant was explicitly told he should provide that video to the delegate or else they would be “no evidence” before the delegate to support the claim. Fifth, the delegate had not referred to the video, or the claim to which it related, in their reasons and finally, that the applicant, likewise, did not address this omission in his otherwise extensive Authority submissions.
Counsel for the first respondent submitted that in these circumstances, it was entirely was reasonable for the Authority to proceed in the manner it did, namely to record that the claim had been raised at the interview to recognise and take account of the fact that the applicant had failed to provide any evidence in support of the claim, to nevertheless consider the bare claim and ultimately find the applicant had not established such a claim.

Consideration

The applicant’s claims contain a plethora of jurisdictional error claims, with some grounds containing multiple allegations of error. The starting point, is that the Authority’s decision should not be read ‘with too fine an eye attuned to error’ (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”) at [46]). It is also not necessary for the Authority to ‘refer to every piece of evidence and every contention made by the applicant in its written reasons’ … ‘it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality’ (see WAEE at [46] and [47]).
In considering the applicant’s claims, it is perhaps useful to summarise the statutory and common law framework that the review was conducted under. The Authority is not required to accept, uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration. Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). There is no general obligation on the Authority to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187], states that:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason The Tribunal must then decide whether that claim is made out.
This review was conducted pursuant to Part 7AA of the Act as a ‘Fast Track Review’. Under Part 7AA of the Act, the Authority must review the decision, subject to certain exceptions, without accepting or requesting new information and without interviewing the referred applicant (see s 473DB of the Act). The Authority may get any documents or information that was not before the Minister, at the time the decision was made, which it considers may be relevant, but is not under a duty to do so (see s 473DC of the Act).
The Authority must not consider any new information unless it considers they are exceptional circumstances to do so and either the new information was not and could not have been provided to the Minister before the Minister made the decision, or 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 (see s 473DD of the Act).
The legislative process, as interpreted by the Courts, to be followed in obtaining new information is confirmed by Perry J in BWO18 v Minister for Home Affairs [2020] FCCA 329 at [23] – [25]. The material to be provided to the Authority by the Secretary, pursuant to s 473CB of the Act, includes material provided by the referred applicant to the person making the decision (see s 473CB(1)(b) of the Act) and any other material that is in the possession or control of the Secretary and is considered by the Secretary, at the time the decision to be relevant to the review, is referred to the Authority (see s 473CB(1)(c) of the Act)
The decision of the Authority is very detailed and is a careful consideration of all the claims made by the applicant. The Court rejects the assertion that integers of the applicant’s claims were not considered. Each aspect was carefully examined and all assessed.
Ground 1 makes complaints about the manner in which the Authority dealt with certain additional information that was provided post the delegates decision to the Authority. The Court agrees with the first respondent that ground 1(a) cannot be made out. The Authority found that the 2015 ITJP report “was before the delegate” and is thus not new information. The Court agrees with this conclusion. No jurisdictional error is made out.
In relation to ground 1(b), which deals with the 2017 ITJP report, the Authority found it was country information that predated the delegate’s decision. The Court does not accept the submission that the material was ‘personal credible information’ for the purposes of s 473DD(b)(ii) of the Act. The material did not concern the applicant, rather it was general information. No explanation was provided as to why it could not have been provided earlier, prior to the Minister’s decision being made. The Authority found it did not meet the conditions of s 473DD(b) of the Act, nor was there were exceptional circumstances to justify its receipt. The Court does not consider this to be an overly narrow approach, as submitted by the applicant. Rather, it was an entirely orthodox approach. This is within the legitimate decisional freedom of the Authority. No jurisdictional error is made out.
Ground 1(c) concerns the letter from the Bishop of Mannar, Dr Fernando. At paragraph 5 of its decision, the Authority finds it is new information. The letter postdates the Ministers decision. However, the events that are recounted occurred many years prior to the applicant and his father leaving Sri Lanka. The Authority was not convinced as to the applicant’s explanation as to why the information could not have been provided at an earlier point of time. The Authority then considered if the information was credible. Given the letter supported a contention that the applicant had smuggled weapons for the LTTE and this claim was not made in the SHEV statement or interview, the Authority did not consider that part of the letter was credible. The Authority did accept however, the applicant did smuggle goods for the LTTE, just not weapons. Again, that was a legitimate decision by the Authority within its decisional freedom. In any event the Authority found that there were not exceptional circumstances to warrant the receipt of the letter as a whole. This clearly indicates a proper consideration of the requirements of s 473DD of the Act. No jurisdictional error is apparent.
Ground 1(d) concerns the material from the ICRC in regards to a person who disappeared from Mannar in September 2012. No explanation was provided to the Authority as to the relevance of the document by the applicant. That explanation is belatedly provided by Counsel for the applicant in submissions. The Court is not satisfied that there was any unreasonableness in the Authority rejecting this document based on the material that was before it, at the time if its decision (see CDZ16 at [10]). No jurisdictional error is made out.
Ground 1 (e-g) deal with 3 letters provided to the Authority. These are dealt with at paragraphs 9-10 of the Authority’s decision. The Authority notes that the contents of this material deal with events that occurred some years prior to the applicant’s departure from Sri Lanka. The Authority is not satisfied as to the delay in obtaining this material and why it could not have been provided prior to the Ministers decision. The Authority notes that two of the letters provide some corroboration of the applicant’s claims that he and his father were involved in smuggling goods for the LTTE, however, they go beyond that and purport to provide information that does not form any part of the applicant’s or his father’s claims. This includes that they sheltered members of the LTTE at their home and that their names appear on a list of wanted persons. The Authority notes that none of these claims were made by the applicant and the Authority would have expected that if these things had happened, these would have been mentioned in either the SHEV statement or interview. The Authority was not satisfied that s 473DD(b) of the Act was met nor was it satisfied there were exceptional circumstances to justify considering the information.
Counsel for The applicant suggests the lack of reasons regarding “exceptional circumstances” is analogous to the failings identified in BVZ16. It is true that exceptional circumstances is to be given broad meaning, however, the Court is not satisfied that in this particular case, it has been read too narrowly. The Court is not satisfied that the rejection of these documents deprived the Authority of the ability to consider important corroborative material. This is entirely speculative on the part of the applicant. Given that there is no explanation as to why the material was not provided at an earlier point in time, the Court considers rejection of the information as unexceptional. No jurisdictional error is established.

Ground 2 – Legal Unreasonableness

Legal unreasonableness is invariably fact dependent. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113]).
The applicant in this ground complains about the findings in paragraphs 18, 19 and 33 of the Authority’s decision. The Authority notes at paragraph 18 of its decision, the applicant did not repeat the claims in his first statement about an incident that he and his father experienced of being taken by the LTTE to a location, being detained and his father being asked joined the LTTE to fight for them. Further, the applicant made claims for many years of bringing food and medicine to the LTTE under threat of being taken again. The incident was not referred to in the applicant’s second statement, nor were these claims made in his father’s SHEV statement or interview. The Authority concludes that these incidents did not occur. The Court is satisfied that there is nothing legally unreasonable about this conclusion. The conclusion was based on an analysis of the overall evidence in the applicant’s case. The Court is satisfied that this conclusion was reasonably open to Authority for the reasons that it gave.
Paragraph 19 of the Authority’s decision deals with a claim that the applicant was captured by the LTTE in November 2006, escaped and returned home after a month. The Authority notes that these claims were not made in either of the applicant’s early interviews with the Department, nor were they referred to in his father’s SHEV interview. Again, there is nothing legally unreasonable about the conclusion arrived at. The decision was based on a consideration of the overall evidence in the applicant’s case. It was reasonably open to the Authority.
Paragraph 33 of the Authority’s decision refers to claims that the applicant did not refer to in his SHEV interview. Claims which were set out in the applicant’s father statement. This included the SLA dropping a bomb after they moved to a new area, which landed near their family home. It also includes a statement that there was a roundup one day in early 2007 at the church. It is alleged that eight people were taken away. The applicant’s father does not know what happened to the ones who were taken. Lastly, after the applicant left Sri Lanka, the authorities visited his mother at home and asked where he and his father were. It is alleged these visits continued for five of six months.
At paragraph 34 of its decision, the Authority concludes that in view of the applicant’s failure to refer to the above claims in his SHEV interview or provide any evidence in support, it does not accept that these incidents occurred. The Court is satisfied that this was a conclusion reasonably open to the Authority, based on its analysis of the totality of the applicant’s evidence and there was nothing legally unreasonable in it.

The Court is not satisfied that there is any evidence that the Authority failed to engage in active intellectual consideration of those claims. The Authority considered the evidence and rejected them. No jurisdictional error is revealed by ground 2.

Ground 3 – Sexual assault of the sister

The Authority accepted that the applicant’s sister was sexually assaulted by Sri Lankan Security Forces. The applicant asserts that this fact, is capable of being corroborative of the family’s profile and LTTE links of the applicant’s family. This assertion was never made by the applicant or his father. The delegate records that the father, as stating his daughter was sexually assaulted, as part of a round up “that resulted in other women being mistreated as well” [see Court Book page 159]. The applicant is not recorded as having raised this in his SHEV interview [see Court Book page 158]. The assertion raised in submissions during the hearing, before this Court, was that that the applicant’s sister was targeted as a result of an “informant”.
Country information was before the Authority which indicated that sexual assaults by members of the security forces and SLA were regrettably commonplace. There was no information before the Authority that the sexual assault was related in particular to perceived LTTE links of the family or for any other reason particular to the applicant. The claim cannot be made out on the evidence before the Authority and no jurisdictional error is established.

Ground 4 – Materials provided by the Applicant’s father

This ground concerns a particular a video which it is said was shown to a Departmental official during the applicant’s father’s SHEV interview. It is asserted the applicant indicated he wanted this video taken into account in his own case.
It is conceded by the applicant that the Departmental official did not “take” the video from the applicant’s father. It is asserted that the video was required, by virtue of s 473CB of the Act to be included in the referred materials as they relate to this applicant to the Authority. The details of the provisions of s 473CB of the Act are set out above. It is common ground that the video was not provided by the applicant to the person making the decision, before the decision was made (see

s 473CB(1)(b) of the Act). The Court is not satisfied it was material that was in the Secretary’s possession or control (see s 473CB(1)(c) of the Act).
If the video was not provided by the applicant and was merely shown to the Departmental official during the applicant’s father’s interview, the Court is not satisfied that any obligation arose under s 473CB of the Act, for the video to be included in the material provided by the Secretary to the Authority, as regards the applicant. As indicated by the first respondent, pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim and to provide sufficient evidence to establish the claim.
If the applicant wished to rely upon the video, it should have been provided to the Department by the applicant. Given that the applicant provided a large amount of additional material to the Authority, there is no reason, if the applicant wished the video to be considered, that he could not have provided it to the Authority. The applicant did not do so. The first respondent has indicated that the applicant himself, did not consider the video as being relevant to his claim. The Court is satisfied s 473CB of the Act was never enlivened. No jurisdictional error is made out.

Ground 5 – Section 473DC of the Act

This ground asserts that had the Authority had access to the video, it may have wanted to the invoke s 473DC(3) of the Act and invite the applicant, or another person, to provide new information about the contents of the video. In the factual circumstances of this case, where the Authority should have been aware of the existence of possibly relevant evidence, being the video, it was unreasonable for the Authority in the context of the unexplained absence of the video, to fail to seek an explanation or clarification.
It is asserted that the failure to seek further information was unreasonable and indicative of jurisdictional error. The Court agrees with the first respondent that the Authority is not obliged to give reasons for the non-exercise of procedural powers such as s 473DC(3) of the Act and it therefore cannot be inferred that the Authority failed to consider exercising that discretion (see BVD17 [16] and [40]).
The Court considers the applicant’s assertion as being highly speculative. It was for the applicant to produce the evidence that he wished to rely upon, to support the claim under s 5AAA of the Act. The applicant did not provide the video and it was not for the Authority, in terms of the overall process followed in Part 7AA reviews, to engage in a fact-finding exercise and obtaining evidence. The Court agrees with the first respondent that the Authority properly considered the claim and ultimately found it was not proven to the requisite degree. There was nothing unreasonable in the Authority not seeking to obtain the video. No jurisdictional error is made out

Conclusion

Accordingly, the application is dismissed.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 17 April 2020