AIT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The appellant's visa application 4 The appellant annexed to his visa application a statutory declaration in which he described aspects of his life in Sri Lanka and set out his claims for protection, as follows - (a) In April 2009, the appellant and his family were moved to a government controlled internally displaced persons camp in the Northern Province, due to the civil war. Before moving to that camp, the appellant and his family had been displaced, and lived with relatives in another area of the Northern Province. The appellant and his family moved into the camp after the Sri Lankan Army (SLA) won control of the area in which the appellant and his family had been living. (b) The area in which the appellant and his family had been living had previously been controlled by the Liberation Tigers of Tamil Eelam (LTTE). The appellant had also previously lived in other areas that the LTTE controlled. The appellant had interacted with the LTTE, and this included the LTTE requiring the appellant to undertake physical training with the LTTE, although he did not use weapons in that training. (c) In early 2010, the appellant and his family were released from the camp, and they went to live with relatives. In August 2010, the appellant and his family returned to their home village. However, they were unable to return to their own property because it was on the seashore near which the SLA had constructed camps. The appellant and his family then lived in an area that the SLA allocated to them. They lived in tents, and the United Nations High Commissioner for Refugees (UNHCR) provided them with food, clothing, and other assistance. (d) Shortly after the appellant and his family resettled in their home village, the appellant purchased a fishing boat, obtained a fishing permit from the SLA, and commenced fishing. Members of the SLA frequently visited the shore and took from the fishermen whatever fish they wanted. The appellant and the other fishermen had no choice but to give them their fish because if they refused, they would get into trouble or their fishing permits would be withheld. (e) During the first week in which the appellant commenced fishing, the SLA took some of his catch. Ten days later, some members of the SLA returned to take more fish. The appellant "interjected" because he had very few fish. The SLA recorded the appellant's boat registration, and told him to come to an SLA camp that was 300 metres away. The appellant went to the SLA camp, where three members of the SLA asked him why he had refused them fish, accused him of being involved with the LTTE, and then physically assaulted him. After being forced to sit on the floor for several hours, the SLA released the appellant, and warned him that he had to obey them if they wanted any fish. The SLA did not issue the appellant with a fishing permit for the following week. (f) In around April 2012, four months before the appellant left Sri Lanka, members of the SLA asked him to go to their camp. The appellant went there with his wife. The SLA stated that given the area in which the appellant lived, he must have been involved with the LTTE. In the face of his denials, the SLA told the appellant not to lie, and accused him of being a member of the LTTE. The SLA beat the appellant with a rifle to seek a confession from him. The SLA made him sign a document before he left, but he did not know what he signed. (g) Shortly after that incident, the SLA took the appellant and three others from the beach to the SLA camp for questioning. The SLA told the appellant and the others that the SLA knew that they lived in an area that had been controlled by the LTTE and that they were involved with the LTTE. The SLA told them to just confess and then they could leave, however, the appellant and the others denied any involvement with the LTTE. The SLA then brought the appellant and the others into their kitchen and made them clean the pots. The SLA later released them, and told them to return to the SLA camp on Monday of every week to "sign in confirming that we were still in the area". (h) On 15 August 2012, two days after the appellant had forgotten to sign in, the SLA came to his home and accompanied him to the SLA camp. When he arrived at the camp, the appellant was taken to a room. The SLA produced a piece of paper stating that he was involved with the LTTE, and told the appellant to sign it. The appellant refused. The SLA assaulted the appellant, saying that he must have been involved with the LTTE because he did not attend the SLA camp to check in. The SLA pointed a rifle at the appellant, and told him that he was required to check in every week, and that if he failed to do so, there would be very serious consequences. (i) The appellant felt that he had to leave Sri Lanka because nothing would change. He heard stories of people disappearing, typically after they had been interrogated or visited by the SLA. Occasionally, there were stories of persons who went to check in but never returned. (j) After the appellant left Sri Lanka, he learned from his wife that the SLA had visited his home asking after him several times over a period of about two months, and that they were angry when told that he was not there, and that they harassed his wife. 5 The appellant also attended an interview with an officer of the Department on 26 May 2016 (SHEV interview), and the appellant's representatives lodged with the Department written submissions dated 9 June 2016. The delegate's decision records that during the SHEV interview, the appellant made some relevant additions and amendments to his written claims. In particular, the delegate's decision records that the appellant stated that during his training with the LTTE, he "did not receive training with real firearms but did receive training with fake weapons, to learn how to prepare a firearm if it was required to be used." This differed to some degree from the account in the appellant's statutory declaration, in which he stated that he "was required to undertake physical training with [the LTTE], though I never used any weapons."

The delegate's decision 6 On 29 August 2016, a delegate of the Minister decided to refuse the appellant's application for a visa. The delegate found that the appellant did not engage ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth). The delegate's reasons record that the delegate - (a) identified inconsistencies in the appellant's claims, including inconsistencies between the appellant's account as contained in his statutory declaration annexed to his visa application and his responses to questions during his SHEV interview with the Department; (b) accepted that the appellant was a Tamil who was born and raised in various areas in the Northern Province of Sri Lanka; (c) accepted that the appellant had assisted the LTTE while living in an LTTE controlled area from 2006 to 2009, but that he did not engage in any military activity or hostilities; (d) accepted that in 2009, the appellant and his family were relocated to an internally displaced persons camp, and that they remained there until early 2010; (e) accepted that after the appellant returned to his village in the Northern Province, he worked as a fisherman, and that he remained in that occupation until shortly before he left for Australia in August 2012; (f) accepted that members of the SLA would often extort fish from the appellant and harass him if he did not provide them with fish; (g) accepted that the SLA questioned the appellant on several occasions because he was a Tamil male from a formerly LTTE controlled area, and that he was required to attend the SLA camp for questioning and was released within one or two hours; (h) accepted that the appellant would have been regularly questioned by the SLA while he was fishing because he would come into contact with the SLA, which had a base at the beach from which he was fishing; (i) did not accept that the SLA harassed the appellant on an ongoing basis, and found that the appellant's claim that he was continually beaten and tortured from the end of 2010 and throughout 2011 was not credible; (j) did not accept that the appellant was asked to report to the SLA on a weekly basis or that he was beaten on nearly every occasion, and therefore also did not accept that he was beaten and detained when he missed his reporting appointment in August 2012; (k) found that the SLA perceived the appellant to be a civilian living in areas formerly controlled by the LTTE, and not a former LTTE member, given that he was released after each occasion when he was questioned, and was never arrested or detained on the basis of imputed LTTE membership; (l) found that apart from the appellant being questioned by the SLA and his fish being taken on a regular basis, he did not experience significant harm from the SLA; (m) did not accept that the SLA continued to look for the appellant after he left Sri Lanka; and (n) concluded that the appellant would not face a real chance of persecution or real risk of significant harm upon return to Sri Lanka.

The review by the Immigration Assessment Authority 7 Following the delegate's decision not to grant the appellant the visa, the appellant's application was referred to the Immigration Assessment Authority for review pursuant to Part 7AA of the Migration Act: see, generally, ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [1] (Kiefel CJ, Bell, Gageler and Keane JJ) and the cases cited therein, which consider Part 7AA of the Act. 8 After the appellant's application was referred to the Authority, the appellant's representative lodged with the Authority written submissions and a further statutory declaration made by the appellant, both dated 7 October 2016. The submissions alleged errors in the delegate's reasons for refusing to grant the appellant a visa. Material to the issues that arise on this appeal, the appellant's representative submitted to the Authority - L. Would the Applicant be targeted if returned to Sri Lanka? Decision at [128] The Delegate concluded that "Sri Lankan authorities target returnees with history of working for and supporting the LTTE": Decision at [128]. Given that the Applicant has provided food and built bunkers for the LTTE, for a period of over 3 years, this falls within the prescribed risk factors, and it is plausible that the Applicant would be targeted upon his return. It is plausible that while authorities undertake an investigative process at the airport to confirm the Applicant's identity, which includes contacting the authorities in the Applicant's home town it will come to their attention that the Applicant has not checked in as required, raising suspicions and leading to a risk that the Applicant would be detained at the airport and subjected to harm. 9 The appellant's further statutory declaration included new claims in relation to his involvement with the LTTE and his interactions with the SLA. In his further statutory declaration, the appellant stated that on the last day of his training with the LTTE, he was shown how to load and shoot a rifle. The appellant also referred to an occasion when three members of the SLA accused him of being in the LTTE and he denied having any involvement, and then those members of the SLA showed him a picture of himself holding a rifle, and further questioned him about his involvement with the LTTE. The appellant stated that after the delegate's decision, a friend who resided in Australia advised him that he had obtained a copy of that picture, although the appellant did not know how or where his friend had found the picture. The appellant also stated that approximately one week before he made his further statutory declaration, he spoke to his aunt in Sri Lanka, who informed him that when she had attended a local police station about 10 days earlier to make an unrelated land enquiry, she was presented with the picture of the appellant holding a rifle and questioned about his whereabouts. The appellant annexed a copy of the photograph to his further statutory declaration. The photograph depicts more than a dozen men, each kneeling and holding a gun. The appellant identified himself as amongst the men in the photograph. The Authority's decision 10 On 23 December 2016, the Authority affirmed the delegate's decision not to grant the appellant a visa. The Authority found that the appellant was not a person who engaged ss 36(2)(a) or (aa) of the Migration Act. The Authority's reasons may be summarised as follows. 11 The Authority first identified the information that was before it. The Authority considered whether the appellant's written submissions and further statutory declaration, which had been provided to the Authority after the delegate's decision, constituted "new information" for the purposes of s 473DD of the Migration Act, and if so, whether it would consider that new information in its review: see, generally, Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217, and AUS17 v Minister for Immigration and Border Protection [2020] HCA 37. The Authority found that to the extent that the submissions contained arguments responding to the delegate's decision, re-asserting claims that were before the delegate and referring to country information, policy advice and Australian case law that was already before the delegate, that did not constitute "new information". The Authority found that a number of reports that had been referred to in the appellant's written submissions constituted "new information" that it would not consider in its review. However, the Authority found that the appellant's claims in his further statutory declaration, and the photograph annexed to that declaration, did constitute "new information" that it would consider in its review. The Authority considered that this new information was not, and could not have been, provided to the delegate, that it was credible personal information which was not previously known and that, had it been known, it may have affected the consideration of the appellant's claims, and that there were exceptional circumstances to justify the Authority considering the new information. 12 The Authority then made a number of findings - (a) it accepted that the appellant lived in LTTE controlled areas during the war, and that he had helped the LTTE as claimed; (b) it accepted that the appellant did some physical training with the LTTE, including some weapons training. In making this finding, the Authority expressed some concerns about the appellant's inconsistent evidence about whether he used weapons in his training with the LTTE, but ultimately it placed weight on the photograph of the appellant holding a rifle, and was "prepared to accept he did some weapons training"; (c) it was not satisfied that the appellant was an LTTE member or combatant, or that he otherwise engaged in active conflict; (d) it accepted that the appellant's family had been displaced towards the end of the war in 2009, and that they were detained in an internally displaced persons camp until their release from that camp in early 2010; (e) it was satisfied that the appellant was not suspected of being an LTTE member or supporter, or was ever accused of being an LTTE member or supporter at any time before August 2010, when he resettled in his home village; (f) it accepted that one week after resettling in his home village, the appellant purchased a boat and resumed working as a fisherman, and that he suffered harassment, discrimination, and extortion from local members of the SLA who would frequently take his catch without payment and would threaten to withhold his fishing permit when he protested; (g) it accepted that between late 2010 and August 2012, the appellant was called to a local SLA camp for enquiry on several occasions, and that he was interrogated about LTTE membership and support because of his previous residence in LTTE controlled areas, and that he was coerced to sign a confession "linking him to the LTTE"; (h) it accepted that on one occasion in 2011, the appellant was interrogated about the photograph of him holding a rifle, and that on another occasion, he was interrogated about having failed to sign in with the SLA; (i) it accepted that the appellant was mistreated by the authorities, including in 2012, who continued to extort fish from him, and to require intermittent call-ins to SLA camps involving threats and physical violence, but found that the appellant embellished the frequency of the call-ins, the severity of the harm that he suffered, and his perceived profile; (j) it was not satisfied that the appellant had been subject to a strict weekly reporting regime with the SLA, and only accepted that in 2012, he was required to report to the SLA camp from time to time when required; (k) it accepted that the photograph of the appellant holding a rifle that was provided to the Authority was authentic, and that during an interrogation in 2011, the SLA had showed the appellant the photograph; and (l) it accepted that the SLA knew from the photograph, and the appellant's subsequent admission, that he did physical training and a day's weapons training with the LTTE. 13 Although the Authority was satisfied that the appellant had suffered physical harm and threats, it did not accept that this amounted to torture. The Authority was not satisfied that the appellant was tortured on any occasion, or that he was harmed with such severity or frequency that it affected his daily activities once he was released. The Authority relied on its findings that the appellant had provided "some inconsistent details", and that "some aspects of his account" were "implausible". In that respect, the Authority referred to the following matters - (a) at an entry interview with the Department held shortly after the appellant arrived in Australia, the appellant stated that in 2012 he had forgotten to sign in with the SLA, but at his interview before the delegate, after initially stating that he had forgotten to sign in, the appellant stated that he deliberately did not sign in because he feared being shot or transferred to another camp; (b) in his statutory declaration, the appellant gave a date on which he was required to sign in, but during his interview before the delegate he was unable to recall the precise dates; (c) the Authority found the appellant's evidence about the frequency of his visits to SLA camps in 2012 to be confused and at times contradictory. The Authority accepted that in 2012, the appellant was required to report to the SLA camp from time to time, but it was not satisfied that he was subject to a strict reporting regime, or that he was detained overnight after failing to sign in; (d) the Authority found implausible the claim that the appellant made at his SHEV interview that the only reason that he had not been transferred to another camp was because his family had blocked the road, and that when he was taken to the camp after failing to sign in, he was released because his wife and children had waited outside. The Authority did not find it plausible that the SLA would have been influenced by the appellant's family if they had in fact suspected the appellant to have engaged in LTTE activity, or for any other reason. The Authority, therefore, did not accept that the SLA ever threatened to transfer the appellant to a different camp. 14 Although the Authority accepted that: (a) between late 2010 and August 2012, the appellant was called to the SLA camp for enquiry and interrogated about LTTE membership and support because of his previous residence in LTTE controlled areas; (b) the appellant was coerced into signing a confession linking him to the LTTE; and (c) the appellant suffered physical harm and threats, the Authority was not satisfied that the Sri Lankan authorities suspected him of being an LTTE member or supporter. The Authority instead found that the Sri Lankan authorities' interest in the appellant was routine monitoring and questioning of the sort to which Tamils in the Northern Province were subjected at that time. The Authority relied on the Sri Lankan authorities not having used the photograph of the appellant holding a rifle, the admissions that he made to the SLA, and the confession that he signed, as evidence to arrest, charge or send the appellant to a rehabilitation camp at any time. The Authority considered it "implausible that the authorities maintained suspicion on him but did not charge, arrest or seek to rehabilitate him." 15 The Authority accepted that the appellant suffered harassment, discrimination and extortion by local members of the SLA who would frequently take his fish without payment and threaten to withhold his fishing permit when he protested. However, the Authority found that the appellant was a target of opportunistic extortion by corrupt officers who took advantage of the ongoing monitoring of Tamils in the Northern Province, and not because he was suspected to be an LTTE member or supporter. 16 Finally, in relation to the appellant's claims about events in Sri Lanka after his departure, the Authority did not accept that the SLA was so persistent as to visit his house four or five times to look for him, or that the claimed interaction between the appellant's aunt and the police who showed her the photograph of the appellant holding the rifle occurred. The Authority did not accept that the Sri Lankan authorities considered the appellant to be an LTTE member or supporter before he left Sri Lanka, and did not accept that the authorities developed that suspicion after his departure. 17 Having made those findings, the Authority considered whether the appellant was a "refugee" within the meaning of s 5H of the Migration Act, and whether the appellant engaged s 36(2)(a) of the Act. The Authority considered that question by reference to: (a) the appellant being a Tamil, together with its findings about his interactions with the SLA; (b) the appellant being a Tamil, apart from its findings about his interactions with the SLA; (c) the appellant having been the subject of opportunistic extortion; and (d) the appellant returning to Sri Lanka as a failed asylum seeker who had departed illegally. 18 In assessing the risk of harm to the appellant as a Tamil, considered together with its findings about his interactions with the SLA, the Authority repeated its findings that the Sri Lankan authorities knew that the appellant lived in an LTTE controlled area in the final stages of the war, and that the authorities were also aware, from the photograph and the appellant's subsequent admission, that he helped the LTTE and that he did some weapons training with the LTTE. The Authority then referred to country information in relation to the risk to persons imputed to be former members or supporters of the LTTE, and its findings in relation to the Sri Lankan authorities' view of the appellant's involvement with the LTTE, as follows - The UNHCR does include in its identified risk profiles inter alia 'former LTTE combatants or cadres' and 'former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the support and transport of goods for the LTTE'. However, the UNHCR also advises that such a person's need for protection depends on the specifics of the individual case. I am satisfied that the authorities' interest in the [appellant] was intermittent and I am satisfied he was never arrested, detained overnight or even subject to reporting requirements. I have not accepted the [appellant] was considered by the authorities to be an LTTE member or supporter. As for the intermittent call-ins, it is noteworthy that these events occurred between 2010 and 2012. While I have not accepted the authorities maintained any suspicion that the [appellant] was an LTTE member, nor any adverse interest in his being a supporter or helper, I do accept that being a Tamil from a former LTTE controlled area whose history of helping the LTTE and doing rifle training was known to the authorities at a time when questioning and monitoring of Tamils was common in the North, the [appellant] was a vulnerable target of opportunistic harassment and extortion. 19 The Authority then referred to country information in relation to the improved situation in Sri Lanka since the end of the civil war. The Authority referred in particular to country information about the situation in the Northern Province, which indicated an improved, less militarised security environment with decreased monitoring and harassment, and a government with a focus on anti-corruption. The Authority went on to make findings as to what would likely happen to the appellant if he was returned to Sri Lanka, as follows - I accept the [appellant] may face some discrimination upon return. However, while he was subject to intermittent call-ins at the time he departed, I have not accepted the authorities considered him to be an LTTE member or supporter. Given this, that he was not subject to any formal reporting regime and the improved situation in Sri Lanka for Tamils, including the decrease in monitoring and harassment of Tamils in the Northern Province and that Tamils there feel more confident to question the motives of the authorities, I am not satisfied that he would suffer harassment or be monitored upon return. I am not satisfied the [appellant] would face a real chance of serious harm through official or societal discrimination, harassment or extortion upon returning from Australia to Sri Lanka. … I am not satisfied he was previously bestowed with this profile by the authorities and I am satisfied that this has not occurred subsequently. I am not satisfied that his profile is such that the [appellant] will be at risk upon return of being detained under the operation of the PTA, or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links. 20 In assessing the risk of harm to the appellant as a Tamil, apart from its findings about his interactions with the SLA, the Authority referred to country information that showed that after the war, "and particularly in the four years that the [appellant] has been in Australia", the situation for Tamils in Sri Lanka had changed considerably. The Authority summarised that country information in some detail. The Authority accepted that Tamils in Sri Lanka, particularly those in the north and east of the country, still faced discrimination and harassment, and that re-possession of land by Tamils whose land was occupied by the SLA was still an issue. However, the Authority noted that the appellant did not claim that his family's land was occupied by the SLA, and it found that the discrimination and harassment suffered by Tamils was not to a level amounting to serious harm. The Authority, therefore, was not satisfied that the appellant would suffer harassment or be monitored on his return to Sri Lanka, or that he would face a real chance of serious harm through official or societal discrimination or harassment. 21 In assessing the risk of harm to the appellant in light of his having been the subject of opportunistic extortion, the Authority was not satisfied that the appellant's family had been targeted for money or faced harm after the appellant left Sri Lanka. The Authority referred to country information that since the end of the war, incidents of extra-judicial killing, disappearances, and kidnapping for ransom had fallen considerably, and that no particular group had recently been the target of kidnapping or extortion. On the basis of this country information, and given its finding that it did not accept that the Sri Lankan authorities considered the appellant to be an LTTE member or supporter, the Authority concluded that it was not satisfied that the appellant faced a real chance of serious harm through extortion. 22 In assessing the risk of harm to the appellant returning to Sri Lanka as a failed asylum seeker who departed illegally, the Authority accepted that the appellant would be identifiable to the authorities at the airport as a failed asylum seeker who had departed illegally. After describing procedures that are followed in the processing of involuntary returnees, and repeating its findings that the Sri Lankan authorities' interest in the appellant "was intermittent and consistent with the level of monitoring that was occurring at that time", and that it was satisfied "the [appellant] is not perceived to be an LTTE member or to have an LTTE supporter profile", the Authority found that on his return to Sri Lanka the re-entry procedures would be applied without discrimination on the basis of ethnicity. The Authority considered what was likely to occur to the appellant on his return, including him being charged for having departed Sri Lanka illegally, being imprisoned for a short time awaiting bail, and being fined, and concluded that the appellant would not suffer significant or serious harm. 23 Finally in relation to the question whether the appellant was a "refugee" within the meaning of s 5H of the Migration Act, the Authority concluded as follows - I have considered the risk of harm to the [appellant], a Tamil male from [a named location] in the Northern Province, who helped the LTTE and is known to have done some physical training and some weapons training, was called in for questioning between 2010 and 2012, signed confessions and was previously harmed. While the [appellant] suffered discrimination, harassment and extortion before he left Sri Lanka in 2012 I am not satisfied that the authorities suspected he was an LTTE member or supporter, or that he would be suspected as such on return to Sri Lanka. Even with these previous circumstances and that authorities asked after him after his departure, that they would be aware that he departed illegally, sought asylum in Australia and spent considerable time here, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution. 24 The Authority then considered whether the appellant met the complementary protection criterion under s 36(2)(aa) of the Migration Act. The Authority repeated the effect of many of the findings that it had made in relation to its assessment of whether the appellant was a "refugee", and concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

The proceeding in the Federal Circuit Court 25 In light of the grounds that the appellant raised in this appeal, it is not necessary to provide a detailed account of the proceeding in the Federal Circuit Court, or the primary judge's reasons. The following summary will suffice. 26 Before the primary judge, the appellant advanced a single ground of review, accompanied by particulars, claiming that the Authority fell into error by not properly applying the "real chance test". By an amended originating application filed on 4 October 2019, the appellant framed that ground as follows - The Authority fell into error by not properly applying the real chance test. PARTICULARS a. At [38], the IAA decision noted that "the UNHCR does include in its identified risk profiles inter alia 'former LTTE combatants or cadres' and 'former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE'. b. At [12], the IAA accepted that, on the basis of the [appellant]'s reliable oral evidence, the [appellant] voluntarily assisted the LTTE by "digging bunkers, cooking at one of their camps and providing medical assistance" between 2006 and 2009. c. The IAA further accepted, at [13], that the [appellant] engaged in physical and weapons training with the LTTE. d. At [45], the IAA "accepted the [appellant] was extorted and mistreated by local SLA against the backdrop of the post-war environment" and at [69], it was accepted that the [appellant] "was extorted and intermittently questioned and harmed between 2010 and 2012". e. The IAA did not consider the real chance that the [appellant] fell within the risk profile in subparagraph (a) above by reason of the findings in subparagraphs (b)-(d). f. The IAA did not consider the real chance of risk to the applicant on return to Sri Lanka due to him having signed a confession admitting involvement with the LTTE [13]. The IAA did not explore the risk to the applicant given that this confession was almost certainly on record somewhere and available to the authorities. g. Similarly, the IAA did not consider the real chance of risk to the applicant on return to Sri Lanka due to the authorities having possession of a photograph of the applicant on a beach depicting the applicant doing LTTE firearms training. 27 The primary judge did not find jurisdictional error in the Authority's decision as claimed, and dismissed the application for judicial review. 28 The primary judge summarised the essence of the appellant's argument before him as being that having regard to findings that the Authority did make - including that the Sri Lankan authorities had possession of the appellant's signed confession and the photograph of him holding a rifle - the Authority ought to have considered those matters in assessing the future risk to the appellant if he returned to Sri Lanka. The primary judge accepted that the Authority did not consider whether the Sri Lankan authorities who would assess the appellant on his return to Sri Lanka would access information about him including the confession and photograph. However, the primary judge found that did not disclose any jurisdictional error. The primary judge found the claim that the confession and photograph would be included in a file associated with the appellant, without inclusion of any exculpatory material to the effect that the confession was coerced and the appellant was of no adverse interest to the authorities, was not raised in the appellant's visa application, or before the delegate or the Authority. The primary judge then identified that the claim relied on two assumptions. First, an assumption that the confession and photograph would be available in some file that the Sri Lankan authorities continued to hold in relation to the appellant, and that the file would be readily accessible to those officers of the Sri Lankan authorities who would likely be involved in processing the appellant. The primary judge found that the appellant had pointed to no material that was before the Authority that could reasonably have suggested such a claim. Second, an assumption that if such a file with the appellant's confession and photograph existed, it would not contain any exculpatory material to the effect that the confession was coerced and that the appellant was of no adverse interest to the authorities. The primary judge found that there was no evidence to support such an assumption, and that assuming that the Sri Lankan authorities did maintain a file in relation to the appellant, the more plausible assumption would be that the file would contain information that related to all of the SLA's dealings with, and assessment of, the appellant. Finally, the primary judge drew attention to the Minister's submission that the appellant had not claimed any jurisdictional error in the Authority's finding that the Sri Lankan authorities did not suspect him of being an LTTE member or supporter. The primary judge stated that the Authority repeated that finding in assessing the risk of harm to the appellant if returned to Sri Lanka, assessed the risk on the basis of that finding, and was not satisfied that the appellant "would be suspected as such [of being an LTTE member or supporter] on return to Sri Lanka." For those reasons, the primary judge did not accept that the Authority made any jurisdictional error by not considering the possibility that the appellant, upon his return to Sri Lanka, would be assessed by the Sri Lankan authorities on the basis of his confession and photograph without reference to any material that showed that he was not of any adverse interest to the authorities. 29 The primary judge also construed the particulars of the amended originating application as giving rise to three specific claims, which he addressed in turn. First, in relation to paragraph (e) of the particulars, the primary judge did not accept the appellant's claim that the Authority, having found that the appellant fell within a UNHCR risk profile, failed to consider whether he faced a real chance of harm. The primary judge also stated that he had clarified with the appellant's representative at the hearing before him that paragraph (e) did not extend to a claim that it was not reasonably open to the Authority to find that the appellant did not face a real risk of harm. Second and third, in relation to paragraphs (f) and (g) of the particulars, the primary judge referred to his earlier reasoning in support of his conclusion that the Authority did not commit any jurisdictional error in assessing the risk of harm to the appellant if returned to Sri Lanka in light of its findings about the confession and photograph.

The appellant's grounds of appeal to this Court 30 The appellant relies upon an amended notice of appeal to this Court filed on 17 June 2020. That notice of appeal raises four grounds of appeal, which I set out below, omitting some paragraphs no longer pressed by the appellant - 1. The primary Judge erred in not finding that the decision of the Authority was legally unreasonable. Particulars … (ii) in circumstances where The Authority accepted that the Sri Lankan Authorities had a photograph of the applicant in LTTE uniform holding a weapon and accepted that the applicant had signed confessions that he was a supporter of the LTTE no reasonable decision maker could make the following finding of past fact without considering what if they were wrong: a. the authorities did not suspect him of being an LTTE member or supporter as the Sri Lankan authorities' interest in the applicant was routine monitoring and questioning of the sort to which Tamils in the Northern Province were subjected to at that time; ... 2. The primary Judge erred in finding that there was no error in the Authority not taking into account that the Sri Lankan Authorities had a photograph of the applicant in LTTE uniform holding a weapon and that the applicant had signed confessions that he was a member and supporter of the LTTE in its consideration of what might happen to the applicant on his return to Sri Lanka as a failed asylum seeker who had departed illegally. 3. In circumstances where the Authority accepted that the Sri Lankan Authorities had a photograph of the applicant in LTTE uniform holding a weapon and accepted that the applicant had signed confessions that he supported the LTTE the Primary Judge erred in finding that the Authority did not need to address these matters when considering what would happen to the applicant on his return to Sri Lanka as the applicant did not claim in his application for a SHEV, or before the delegate or the Authority, that the confession that had been coerced from him, and the photograph that had come into the hands of the SLA, would be included in a file associated with the application. 4. The primary Judge should have found that the Authority's finding that the applicant is not considered to be an LTTE supporter or member did not remove the need for the Authority to take into account that the Sri Lankan Authorities had a photograph of the applicant in LTTE uniform holding a weapon and that the applicant had signed a confession that he was a member of the LTTE in its consideration of what might happen to the applicant on his return to Sri Lanka as a failed asylum seeker who had departed illegally. 31 The first ground of appeal is framed by a claim that the "primary Judge erred in not finding that the decision of the Authority was legally unreasonable". However, counsel for the appellant accepted that it had not been raised below. Leave is required to raise a new argument on appeal. The reasons for this practice include the distinct roles of a court exercising original jurisdiction, and a court exercising appellate jurisdiction: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7. Further, in the context of judicial review of migration decisions, raising an argument on appeal in this Court that was not raised in the Federal Circuit Court below runs contrary to the legislative scheme of the Migration Act, which limits this Court's original jurisdiction: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] (Perram J). Leave to raise a new argument may be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]. By his written submissions, the Minister raised these points, but ultimately accepted that whether it is in the interests of the administration of justice to permit the appellant to advance this new ground would depend principally upon the merits of the ground, and did not oppose the grant of leave. In those circumstances, at the commencement of the hearing of this appeal, I reserved the question whether to give leave to the appellant to raise this new ground. I did so because I was of the view that the merits of the ground were likely to be the leading consideration in determining whether leave should be given, and I then proceeded to hear full argument. 32 The other grounds of appeal relate to the primary judge's reasons for rejecting the single ground of review advanced below, which was a claim that the Authority had not properly applied the "real chance test".

The parties' submissions 33 The parties structured their submissions by first addressing ground 1, and then addressing grounds 2 to 4 together. Those submissions may be summarised as follows.

Ground 1 - the appellant's submissions 34 By reference to ground 1 of the amended notice of appeal, the appellant submitted that in the context of a number of features of the material that was before the Authority it was legally unreasonable for the Authority to find that the Sri Lankan authorities did not suspect the appellant of being an LTTE member or supporter, without the Authority expressing any doubt about that finding. The features of the material on which the appellant relied to support this submission included the following. (1) Although the appellant had been released after questioning by the Sri Lankan authorities, the appellant submitted that country information that was before the Authority in the form of a report of the United States Department of State dated 13 April 2016, and a report of Amnesty International dated 7 October 2014, indicated that it was common for the Sri Lankan authorities to release persons of interest before they were re-arrested for questioning. (2) The appellant submitted that the findings of the Authority brought the appellant within a risk profile identified by the UNHCR that was referred to at [38] of the Authority's written statement, namely - 'former LTTE combatants or cadres' and 'former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE'. (3) The appellant relied on the finding of the Authority that the appellant undertook some physical training with the LTTE, including weapons training as depicted in the photograph that was produced to the Authority and accepted as new information to which the Authority had regard, and that the appellant on one occasion had been interrogated about the photograph. (4) The appellant also relied upon country information in a report of the Immigration and Refugee Board of Canada dated 11 February 2015 that stated that - … failed asylum seekers are more likely to be readily associated with the LTTE either by virtue of the fact that they sought asylum of because of a presumption of involvement in Tamil Diaspora activities which are viewed by the Sri Lankan government as being supportive of the LTTE. (5) The appellant relied on a submission made to the delegate, citing a DFAT country information report dated 18 December 2015 that returnees to Sri Lanka are handed to the Criminal Investigations Department (CID), and that - The CID interrogates returnees to confirm their identity and character. Enquiries are made with criminal record databases, police stations in all districts where returnees lived, former neighbours and family members. (6) The appellant relied on country information in the form of a News Line report dated 6 October 2009 that was referred to in the delegate's decision relating to identity cards that were issued to internally displaced persons (IDPs), including the appellant, and a statement in the delegate's reasons that - … the cards were linked to a data base which included further details of the IDPs and was also created for tracking of aid assistance. (7) The appellant relied on a submission that had been put to the Authority that upon his return to Sri Lanka it was plausible that - … while authorities undertake an investigative process at the airport to confirm the [appellant's] identity, which includes contacting the authorities in the [appellant's] home town it will come to their attention that the [appellant]has not checked in as required, raising suspicions and leading to a risk that the [appellant] would be detained at the airport and subjected to harm. (8) The appellant also relied on the findings of the Authority that the appellant had been coerced into signing a confession linking him to the LTTE, that on one occasion he was interrogated about the photograph of him undertaking weapons training, and on another occasion about his failure to sign in. The appellant submitted that there was a tension between the Authority's acceptance that he was interrogated about a failure to sign in, and its failure to accept that the appellant was not under any compulsion to sign in on a regular basis, and submitted that this was a factor that went to how compelling the reasoning of the Authority was. I have referred to these findings of the Authority at [12(h) and (j)] above. 35 The appellant submitted that the inconsistencies in the appellant's accounts that were identified in the Authority's findings to which I referred at [13] above were not particularly probative, and that this submission was relevant to whether the Authority was justified in expressing itself about its ultimate conclusion, without reserving to itself some doubt. 36 In relation to the Authority's finding to which I referred at [14] above that it was "implausible that the authorities maintained suspicion on him but did not charge, arrest or seek to rehabilitate him", the appellant submitted that there was a plausible explanation, namely that the appellant was of more value to the relevant members of the SLA without being detained, because they were able to extort fish from him, and that this also provided a plausible explanation as to why they continued to question and monitor him. 37 In summary, the appellant submitted that by the combination of matters referred to above, the Authority should reasonably have entertained real doubt about its conclusion that the appellant was of no real interest to the Sri Lankan authorities, and that no reasonable decision maker could have made that finding without having some uncertainty. The appellant's case was that, had the Authority expressed real doubt about its finding, then the Authority would have been required to take account of the possibility that the Sri Lankan authorities did suspect the appellant of being an LTTE member or supporter in considering the ultimate questions before the Authority: see, Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; 93 FCR 220 at [62]-[64] (Sackville J, North J agreeing).

Ground 1 - the Minister's submissions 38 In response to ground 1, the Minister submitted that the Authority's decision was not affected by legal unreasonableness in the way submitted by the appellant. 39 The Minister accepted that unreasonableness in fact-finding is a recognised ground upon which an administrative decision may be challenged. However, the Minister submitted that the Authority's fact-finding was not unreasonable in any sense. The Minister submitted that the Authority exposed in its reasons an evident justification for its conclusion that the appellant was not of ongoing suspicion to the Sri Lankan authorities before he left Sri Lanka, even having regard to the existence of the signed confession and the photograph. The Minister submitted that it was not unreasonable for the Authority not to express uncertainty in its conclusion about the appellant's profile or his fear of harm.

Grounds 2 to 4 - the appellant's submissions 40 By grounds 2 to 4 of the amended notice of appeal, the appellant submitted that the Authority erred in its consideration of what might occur to the appellant at the airport if he was returned to Sri Lanka, and that the primary judge erred in dismissing the appellant's argument below about that risk. The relevant part of the primary judge's reasons is summarised at [28], above. 41 The appellant's submissions in relation to these grounds of appeal were principally in writing, and were not developed much further at the hearing. The appellant submitted that while the primary judge correctly identified that the appellant had not claimed before the delegate or the Authority that he knew that his signed confession and the photograph were on a file at the airport, it was not necessary for him to make a claim in those terms. The appellant submitted that it was sufficient that he claimed that those documents remained in the possession of the Sri Lankan authorities, so as to raise for consideration whether there was a chance or risk that they might be available at the airport. In this respect, the appellant also relied upon the Authority's finding that entry procedures at the airport may include "contacting [the appellant's] home area's police", and his claim that local police had recently shown the photograph to his aunt and questioned her about his whereabouts, which claim I note was rejected by the Authority. 42 The appellant submitted that the Authority's finding that the Sri Lankan authorities did not suspect him to be linked to the LTTE was not a complete answer to this claim. He submitted that given that he would be returning to Sri Lanka as a failed asylum seeker, the Authority was required to consider whether the Sri Lankan authorities at the airport may view his signed confession and the photograph in a different light. In support of this point, the appellant pointed to the report of the Immigration and Refugee Board of Canada to which I referred at [34(4)] above.

Ground 2 to 4 - the Minister's submissions 43 In response to grounds 2 to 4, the Minster submitted that the primary judge did not err in dismissing the appellant's argument below that the Authority erred in its assessment of the risk to him at the airport if he was returned to Sri Lanka. 44 The Minister submitted that there was no claim, or evidence to support any claim, that the signed confession or the photograph were, or might have been, in the possession of the Sri Lankan authorities responsible for processing incoming international returnees at the airport. The Minister further submitted that in any event, the Authority in support of its conclusions that the appellant would not be at risk of harm as a person who departed Sri Lanka unlawfully, expressly took into account that the appellant was known to have done some weapons training with the LTTE and had signed confessions.

Ground 1 45 A decision of the Authority may be amenable to judicial review on the ground of jurisdictional error if a factual finding that is a material, if not a critical step along the way to the discharge of the Authority's statutory review function, is shown to be legally unreasonable because it is illogical, irrational, or lacking an evident and intelligible foundation: see, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] (Crennan and Bell JJ), Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [150]-[159] (Robertson J). In entertaining any claim of this character, the Court must be mindful that Parliament has conferred the decision-making function on the Authority, and not on the Court. The Court is concerned only with the legality of the Authority's decision, and does not undertake a re-hearing of the review undertaken by the Authority as if on appeal: see, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 5; 237 FCR 1 at [8] (Allsop CJ). Accordingly, the question before the Court is not whether it considers that the impugned element of the decision under review was reasonably arrived at, but whether it was not open to the decision-maker to engage in the process of reasoning in which it did engage, or to make the findings that it did make on the material before it: SZMDS at [133] (Crennan and Bell JJ). In undertaking that inquiry, a Court should seek to avoid an unconscious process of reasoning under which the Court does not consider an impugned decision to be reasonable, and concludes therefore that no other decision-maker could consider it to be reasonable: cf, Davis v Bunn [1936] HCA 44; 56 CLR 246 at 265-266 (Evatt J), and see Stretton at [8]. 46 In this appeal, the appellant claims that it was unreasonable for the Authority to find that the Sri Lankan authorities did not suspect the appellant of being an LTTE member or supporter without reserving to itself some measure of real doubt. In terms, the appellant submitted that no reasonable decision-maker could have made the finding without having some real uncertainty. 47 The Authority's findings that the Sri Lankan authorities did not suspect the appellant of being an LTTE member or supporter, and that he was not required regularly to report, were inferences that the Authority drew from other facts. The principal facts were that despite the existence of the photograph, and the appellant's admission that he undertook physical training that included a day's weapons training with the LTTE, the appellant had numerous other interactions with the SLA. The Authority considered as significant the fact that there were no consequences of the type that country information indicated were generally faced by LTTE members and suspected supporters, together with the absence of a regular reporting regime. The appellant's submissions in support of the first ground of appeal proceeded on the premise that the Authority expressed no real doubt about the issue, which I accept to be a fair interpretation of the Authority's reasons: see, Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; 93 FCR 220 at [67]. 48 The existence of doubt about questions of fact is always liable to exist. In science, doubt is encouraged as a means of challenging accepted assumptions so as to advance human knowledge. In philosophy, the promotion of doubt may be used to test questions of existence, and being. However, generally speaking, an administrative decision-maker such as the Authority is not required to entertain all doubts, no matter how small. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 576 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ referred to the Tribunal the subject of that appeal as having "no real doubt" that its findings were correct, meaning that the probability of error in its findings was insignificant. Because of the apparent confidence of the Tribunal in its findings, it was not bound to consider that its findings might be wrong. 49 The appellant's submissions invite attention to the circumstantial facts to which the Authority referred in support of the finding that is impugned, against the background of the country information to which the Authority referred. As I have indicated, in considering those facts the Court does not conduct a rehearing of the review undertaken by the Authority, and must ensure that it does not usurp the fact-finding function of the Authority that is inherent in its review function. Accordingly, it is not enough for the appellant to persuade the Court that it was reasonable for the Authority to entertain some real doubt about its conclusions. And it is not enough for the appellant to persuade the Court that it should entertain the existence of some real doubt about the correctness of the impugned finding. The appellant must demonstrate that the only reasonable conclusion available to the Authority was one which should have been attended by some real doubt. 50 The Authority's path of reasoning rested on its acceptance that the Sri Lankan authorities were in possession of the photograph depicting the appellant and others bearing firearms, and its acceptance that the appellant signed a confession. As I have mentioned, in the Authority's view, it was significant that there were no consequences to the appellant such as arrest, charges, or placement in a rehabilitation camp which were indicated by country information as being generally faced by LTTE members and suspected supporters, and that the appellant was not the subject of a regular reporting regime. 51 There are three related reasons why I am unable to accept the appellant's claim under the first ground of appeal. The first is that the appellant invites the Court to characterise as legally unreasonable the degree of confidence with which the Authority expressed its conclusions on critical questions of fact. Inherently, a question involving the degree of confidence with which a decision-maker might make a finding of fact raises the prospect that different minds might reasonably entertain different views. The second reason is that the Authority is an expert tribunal. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [180], Hayne J observed in relation to the Refugee Review Tribunal that it will bring to the task of deciding an individual's application "a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications", and that such a body, unlike a court, "is expected to build up 'expertise' in matters such as country information", which is often critical in deciding the fate of an individual's application. See also Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 977 at [7] and [12] (Gleeson CJ), at [116] (McHugh J), at [263] (Hayne J), and at [300] (Callinan J). Those observations apply equally to the Authority, and to the review function that it discharged in this instance. That brings me to the third reason, which is that a material element of the Authority's reasoning process was its reliance on country information. That body of information is not before the Court, and there is therefore an insufficient basis on which to challenge the Authority's reliance upon it, still less to establish that the expression of the Authority's findings is to be characterised as legally unreasonable. 52 As to the appellant's submission that there was a plausible alternative reason why the appellant was not arrested or detained, namely that he was of more value to members of the SLA as a source of fish, the submission rises no higher than an invitation to the Court to undertake a re-hearing. The submission was not made to the Authority by the appellant's representatives when in a written submission they addressed the reasons why the appellant had not been taken to a rehabilitation camp. That feature of the matter is not determinative, but it is indicative that the appellant is seeking to assail the Authority's reasons on the merits. The existence of, and the weight to be accorded to the appellant's alternative hypothesis was a matter for the Authority to decide having regard to its expertise in evaluating the material before it, including the country information. In those circumstances, I am not persuaded that it was unreasonable for the Authority not to have given weight to the appellant's alternative hypothesis so as to conclude that there must have been some real doubt about its primary findings. 53 For the combination of the above reasons, I am not persuaded that there is sufficient merit in the appellant's first ground of appeal, and I refuse leave to the appellant to raise it.

Grounds 2 to 4 54 The ground of review that was before the primary judge claimed that the Authority did not properly apply the "real chance test", which was accompanied by the particulars that I have set out under [26] above. The term "real chance" is employed in the definition of "well-founded fear of persecution" in s 5J of the Migration Act, which is a component of the definition of "refugee" in s 5H of the Act. A person is a refugee within the meaning of that term in s 5H(1) of the Migration Act if - (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or (b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. 55 In turn, s 5J(1) of the Act provides, inter alia, that a person has a well-founded fear of persecution if - (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. 56 As I stated at [29] above, the particulars of the appellant's ground of review below raised three claims - (1) a claim that by reason of its findings, the Authority did not consider the real chance that the appellant fell within a risk profile identified by the UNHCR guidelines [particular (e)]; (2) a claim that the Authority did not consider the real chance of risk to the appellant on return to Sri Lanka due to him having signed a confession admitting involvement with the LTTE, and that the Authority did not explore the risk to the appellant given that his confession was almost certainly on record somewhere and available to the authorities [particular (f)]; and (3) a claim that the Authority did not consider the real chance of risk to the appellant on return to Sri Lanka due to the authorities having possession of a photograph of the applicant on a beach depicting the appellant undergoing LTTE firearms training [particular (g)]. 57 The primary judge rejected the claim made by particular (e), holding that the Authority had considered the UNHCR guidelines relied on by the appellant, and noting that the guidelines provided that the risk profiles depended upon the specifics of the individual case. The primary judge held that the Authority had addressed the risk profile, and had not accepted that the appellant was considered by the authorities to be an LTTE member or supporter. There is no ground of appeal directed to the primary judge's rejection of this aspect of the appellant's claim. 58 As to the claims in particulars (f) and (g), I have summarised the primary judge's reasons for rejecting them at [28] above. The primary judge identified that the arguments about the risk of the confession and the photograph being contained on a file associated with the appellant were first raised by the application to the Federal Circuit Court. While that may be true in relation to the specific reference to the confession or photograph being maintained on a file, in my view it is necessary to direct attention to the more general claim by the appellant that was put to the Authority and which I have set out at [18] above, namely that he would be targeted on his return, and that it was plausible that upon return the appellant would be detained at the airport and subjected to harm. The Authority addressed that claim, referring specifically to the weapons training and the signed confession, and found that it was not satisfied that the Sri Lankan authorities suspected that the appellant was an LTTE member or supporter, or that he would be suspected as such on return to Sri Lanka. The appellant's submission that the Authority failed to take account that the Sri Lankan authorities had a photograph of the appellant holding a weapon and that the appellant had signed a confession did not amount to the identification of a separate claim that the Authority failed to address. 59 In my view, the arguments that were advanced on behalf of the appellant to the primary judge addressed the merits of the Authority's decision, rather than identifying error of a jurisdictional nature. Although the primary judge held that the arguments advanced before him disclosed no jurisdictional error, the reasons for so holding included addressing the merits of the underlying factual claims. However, the primary judge was correct to reject the claims for the reasons that his Honour gave at [26], namely - … The Authority made a finding the applicant does not claim is affected by any jurisdictional error, namely, the Authority was not satisfied the authorities in Sri Lanka suspected the applicant to be an LTTE supporter. The Authority repeated that finding when assessing the risk of harm to the applicant on his return to Sri Lanka, and it assessed that risk on that basis. Further, the Authority found it was not satisfied not only that the authorities suspected the applicant was an LTTE member or supporter; it was also not satisfied the applicant "would be suspected as such on return to Sri Lanka". (Footnotes omitted.)

Conclusion 60 For the above reasons, there was no error by the primary judge in ordering that the application be dismissed. The first respondent should have costs of the appeal. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.