AMZ18 v Minister for Home Affairs

Federal Court of Australia|2019-06-14|Before: Besanko J

The appeal be allowed.
The orders made by the Federal Circuit Court of Australia on 25 July 2018 be set aside and in lieu thereof, there be the following orders: (a) The decision of the Immigration Assessment Authority (the Authority) made on 25 January 2018 be quashed; (b) The matter be remitted to the Authority for reconsideration of the matter according to law.
The parties indicate to the Court within fourteen days whether they are able to agree the orders which should be made as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is an appeal from an order made by the Federal Circuit Court of Australia on 25 July 2018. On that day, the Federal Circuit Court made an order that the appellant's amended application for judicial review dated 13 July 2018 be dismissed. The appellant had sought judicial review of a decision of the Immigration Assessment Authority (the Authority) which affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (Protection visa). 2 The appellant arrived in Australia by boat on 13 October 2012. On 1 March 2017, he made an application for a Protection visa. He described his country of origin as Sri Lanka, his ethnicity as Tamil, and his religion as Hindu. The appellant came from a town in the Northern Province of Sri Lanka. I will refer to this place as the appellant's town in the Northern Province. The appellant attached a statement to his application in which he set out the basis of his claim for refugee status or complementary protection. 3 On 13 June 2017, the Department of Immigration and Border Protection advised the appellant that his application for a Protection visa had been refused. A decision record setting out the delegate's reasons was attached to the letter of advice. 4 On 16 June 2017, the Authority advised the appellant that the matter had been referred to the Authority for a review. 5 On 1 August 2017, the appellant sent a newspaper article dated 19 September 2012 to the Authority and asked the Authority to consider the article in support of his claim. The newspaper article is important because one of the issues raised by the appellant concerns the Authority's application of s 473DD of the Migration Act 1958 (Cth) (the Act) to the article. That section deals with the circumstances in which the Authority may consider new information. The Authority refused to consider the newspaper article and its decision was a ground of review before the Federal Circuit Court and the primary judge's decision on that ground of review is a ground of appeal to this Court. The newspaper article deals with the abduction of a youth from the appellant's town in the Northern Province four days before the article. The newspaper article reports that when the youth came out with money from the insurance office in which he worked he was abducted by persons who came in a van. While in the van, the persons offered the youth a drink, but thereafter he does not know what happened to him. He was taken to a house in another place where he was attacked "severely". The abductors spoke fluent Sinhalese. The youth later escaped and was receiving treatment in hospital. The article states that Tamil armed groups did not carry out the abduction. The article queries how they transported the youth through various checkpoints. The chairman of the local town council is reported as saying that such incidents were causing fear among people. In his email sending the article to the Authority, the appellant claimed that the youth referred to in the article was a friend of his and had been abducted instead of him. 6 On 25 January 2018, the Authority affirmed the delegate's decision not to grant the appellant a Protection visa. 7 The appellant made an application for judicial review in the Federal Circuit Court. His amended application dated 13 July 2018 contained two grounds. The first ground was that the Authority committed a jurisdictional error by failing to consider his claims that he feared persecution in Sri Lanka by reason of his Tamil ethnicity, or his status as a Tamil from the appellant's town in the Northern Province, or both. The particulars of this ground identify claims made by the appellant which were considered by the Authority. The particulars also assert that the appellant's "separate, more general claims" that he had a justified fear of persecution in Sri Lanka as a Tamil or as a Tamil from the appellant's town in the Northern Province, or both, were not considered by the Authority. The second ground was that the Authority committed a jurisdictional error by misapplying the statutory test in s 473DD of the Act in determining whether it could have regard to the newspaper article. The particulars to this ground asserted that the Authority misconstrued s 473DD(b)(ii) by proceeding on the misunderstanding that the newspaper article could only satisfy the test in that paragraph if the new information in the article was about the appellant, or in failing to have regard to the appellant's claims to fear persecution based on his Tamil ethnicity or his status as a Tamil from the appellant's town in the Northern Province, or both, when determining whether the newspaper article may have affected the consideration of the appellant's claims. 8 The Federal Circuit Court delivered its decision and made its orders on 25 July 2018 (AMZ18 v Minister for Home Affairs & Anor [2018] FCCA 2027). 9 On 21 August 2018, the appellant filed an appeal against the decision of the Federal Circuit Court. There are three grounds of appeal and they are as follows. First, the Federal Circuit Court constructively failed to exercise its jurisdiction by failing to provide adequate reasons and failing to consider fundamental aspects of the appellant's case. Secondly, the Federal Circuit Court erred in failing to find that the Authority committed jurisdictional error by failing to consider the appellant's claims that he feared persecution in Sri Lanka by reason of his Tamil ethnicity or his status as a Tamil from the appellant's town in the Northern Province, or both. Thirdly, the Federal Circuit Court erred in failing to find that the Authority committed jurisdictional error by misapplying the statutory test in s 473DD of the Act in determining whether it could consider the newspaper article. 10 On 13 February 2019, the first respondent (the Minister for Home Affairs) filed a Notice of Contention in which he alleged that Grounds 2 and 3 of the appeal could not succeed because "the appellant made no 'generic' claim(s) to face harm on the basis of his origins or ethnicity, and no such claim(s) clearly arose on the materials before the Immigration Assessment Authority".

THE DECISION OF THE AUTHORITY 11 I will identify those aspects of the Authority's decision relevant to the grounds of judicial review and the grounds of appeal. 12 The Authority considered whether the newspaper article could be considered by it as new information. 13 Section 473DD of the Act is in the following terms: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 14 The Authority considered first, the requirements in paragraph (b) which are alternatives. 15 With respect to paragraph (b)(i), the Authority said that given the date of the article it was not satisfied that it could not have been provided to the Minister prior to the date of the delegate's decision. 16 With respect to paragraph (b)(ii), the Authority referred to the content of the article and said that it was broadly consistent with country information from 2012 which was before the delegate. It also said that the claim by the appellant that he had a friend who had been abducted in 2012 was made in his application for a Protection visa and in his Protection visa interview and that the delegate, although finding it plausible that one of the appellant's close friends was abducted in 2012, was not prepared to accept that this incident occurred because his friend was mistaken for the appellant. The delegate said that the incident was a random act. The Authority said that the article made similar claims to those previously put forward by the appellant which were accepted by the delegate. It said the article did not itself refer to the appellant or suggest that the appellant's conclusion that the abduction was related to the appellant were true. The Authority said that given those matters, it was not satisfied "that the article contains credible personal information that was not previously known which may have affected the consideration of the applicant's claims" (Authority's emphasis). The Authority concluded that the requirements of paragraph (b)(ii) were not satisfied. As neither paragraph (b)(i) nor paragraph (b)(ii) were satisfied, the Authority said that it could not consider the information. The Authority considered paragraph (a) for the sake of completeness and, in that context, said that it was not aware of any exceptional circumstances which may justify consideration of the article and nor were any outlined by the appellant. 17 The Authority then turned to consider the appellant's claims. It accepted that the appellant was a Tamil citizen of Sri Lanka and of the Hindu faith. It accepted that he had been born in the appellant's town in the Northern Province. 18 The Authority summarised the appellant's claims as follows: • The applicant is a Tamil male who was born on 23 June 2987, in the township of [REDACTED], in the Northern Province of Sri Lanka. • The applicant's cousin was a Liberation Tigers of Tamil Elam (LTTE) cadre. She was killed when the applicant was 13 years old. • As a child he and his family were displaced due to fighting around [REDACTED] between the LTTE and the Sri Lankan Army (SLA). As a consequence they resided in [REDACTED] between 1996 and 2002. The (sic) lived in [REDACTED] for a short period in 2002 and returned to [REDACTED] in 2003. • By the time of his return to [REDACTED], the township had come under the control of the SLA. Between 2006 and the end of the war in 2009 Sri Lankan security forces routinely rounded up Tamils in the area and subjected them to identity checks and interviews to determine if they had any links to the LTTE. Neither the applicant nor his family were subjected to these checks. After the war ended Tamils around [REDACTED] were subjected to a discriminatory curfew policy. • In 2012 the applicant was working as a fisherman in the [REDACTED] area. Around April or May of 2012 the applicant and his brother were on a boat when they were approached by a Sri Lankan Naval (SLN) vessel. Sailors from the vessel boarded their boat and mistreated them. • The applicant provided an outline of this issue to a local Tamil newspaper with a view to having it published. After meeting with representatives of the Sri Lankan navy who threatened him, he withdrew his allegations. The article was not published. • A friend of the applicant was abducted in a white van. He was held for three days, mistreated and released. After release he spent a week in the hospital for injuries suffered whilst he was abducted. The applicant believes his friend was abducted in error and the kidnappers had meant to abduct him. • The applicant was arrested several days later. He was taken to court. He was not provided any explanation for his arrest. The applicant's father put up bail and the applicant was released that day. He was advised he would have another hearing in a months' time. • The applicant departed Sri Lanka illegally by boat in September 2012. • In 2016 the applicant's father was summonsed to appear before a court because the Sri Lankan authorities were looking for the applicant. • Since his arrival in Australia the applicant has attended a number of LTTE commemorations. • The applicant fears that if he was returned [to] Sri Lanka, he might be harmed or killed given his links to the LTTE, his illegal departure and his status as a failed asylum seeker. 19 By way of summary, these claims involve contentions about the applicant's ethnicity and origin, his family relationships, circumstances of his childhood and teenage years, an incident in April or May 2012 involving the Sri Lankan Navy (the Navy), the abduction of a friend, the appellant's arrest and alleged departure from Sri Lanka, the treatment of his father after the appellant had left Sri Lanka and his activities in Australia since arriving in this country. 20 The Authority then turned to consider these matters under the following headings: (1) Imputed Liberation Tigers of Tamil Elam (LTTE) membership and Tamil Ethnicity; (2) Mistreatment by the Navy; (3) The Abduction of his friend; (4) Applicant's father arrested; and (5) Failed Asylum Seeker who departed Sri Lanka illegally. 21 Under the first heading, the Authority considered the effect on the appellant of his cousin's role in the LTTE and the use of roundups and check points by the authorities against Tamils in the area of the appellant's town in the Northern Province. 22 Under the second heading, the Authority considered the incident the appellant was involved in with the Navy and a subsequent court appearance. 23 Under the third heading, the Authority concluded that although the abduction had taken place, it was unrelated to the appellant. 24 Under the fourth heading, the Authority considered the treatment of the appellant's father which was related to the appellant's court appearance which was, in turn, related to the incident involving the Navy. Under this heading, the Authority also considered the effect of the appellant's activities in Australia and the combined effect of the matters under previous headings. 25 Under the final heading, the Authority considered the effects on the appellant of being a failed asylum seeker and of leaving Sri Lanka illegally. 26 The Authority then expressed its conclusion with respect to the appellant's claim to refugee status. It said (at [55]): 55 Having considered all of the evidence before me, I am not satisfied that he (sic) applicant would face a real chance of harm arising from his ethnicity and origins, his family links to the LTTE, his April 2012 encounter with the Navy, the abduction of his friend in September 2012, the court hearing of his father in 2014, his status as a failed asylum seeker or any combination of these claims if returned to Sri Lanka. 27 The Authority then turned to consider the appellant's claim to complementary protection. In that context, it reiterated its conclusion in relation to the appellant's claim to refugee status and then applied it to the test for complementary protection. It said (at [59]): 59 I have found that the applicant would not face a real chance of harm arising from his ethnicity and origins, his family links to the LTTE, his April 2012 encounter with the Navy, the abduction of his friend in September 2012, the court hearing of his father in 2014 or his status as a failed asylum seeker. As 'real chance' and 'real risk' have been found to meet the same standard, I am not satisfied that the applicant would face a real risk of significant harm arising from any of these factors, or any combination of them if returned to Sri Lanka. 28 The Authority then addressed particular matters related to complementary protection. It is not necessary to set those matters out. 29 The Authority's decision was to affirm the delegate's decision not to grant the appellant a Protection visa.

THE PRIMARY JUDGE'S DECISIOn 30 I have already summarised the grounds of the appellant's application for judicial review (at [7]). The primary judge delivered his reasons at the conclusion of the submissions made by the parties. 31 With respect to Ground 1, the primary judge dealt with the ground in the following two paragraphs (at [25]-[26]): 25 In relation to ground 1, Ms Winnett of counsel, on behalf of the applicant, contended that there was a general claim of Tamil ethnicity that the Authority had failed to address in its reasons. Ms Winnett took the Court to the applicant's statement in support of his protection visa where he referred to his Tamil ethnicity, as well as to the delegate's reasons dealing with the applicant's claims. Ms Winnett, by analogy, submitted that the Authority had not engaged in the same type of reasoning as the delegate did. The delegate's reasons in that regard refer to a DFAT country report which was the same DFAT country report cited on a number of occasions by the Authority in its consideration of the applicant's claims. 26 There is no substance in ground 1. The Authority expressly found in paragraph 55 that the applicant would not face a real chance of harm arising from his ethnicity and origins. On a fair reading of the Authority's reasons, that reflected both what has been described in the applicant's submissions as the ethnicity claim and the origin claim. The Authority's reasons are not to be read with a keen eye for error and the reasons as summarised above made dispositive findings in respect of the applicant's claims. There is no integer of the applicant's claims that the Authority failed to consider. No jurisdictional error as alleged in ground 1 is made out. 32 With respect to Ground 2, the primary judge dealt with the ground in the following two paragraphs (at [27]-[28]): 27 In relation to ground 2, Ms Winnett submitted that there were two errors made by the Authority in its consideration of a particular report, being the 2012 article. The first argument that is advanced is that there was an error in the application of s 473DD(b)(ii)of the Act, in that it is asserted the Authority erroneously assumed that credible personal information must be about the applicant. A fair reading of the Authority's reasons does not support any such erroneous construction in the determination of whether or not there were exceptional circumstances to justify considering this new information. No error of that kind is made out. 28 The next submission is that there was a failure by the Authority to expressly refer to the ethnicity and origin status claim of the applicant. To the extent that the Authority referred to the respective limbs under s 473DD(b) of the Act, there is no warrant for inferring that the Authority was excluding from the circumstances the claims that had been advanced by the applicant. There was no need for the Authority in its considerations under s 473DD of the Act to expressly refer to the applicant's ethnicity and origin from the Northern Province. The Authority's reasons are to be read as a whole and the reasons as summarised above reflect taking into account both the applicant's ethnicity and the applicant's origin. No jurisdictional error as alleged in ground 2 is made out.

THE ISSUES ON THE APPEAL 33 The issues raised by the Notice of Appeal and the Notice of Contention are identified above (at [9] and [10]).

The Written Submissions made by the Parties 34 I begin with a summary of the written submissions made by the parties on the appeal. 35 It is important at the outset to understand how the appellant structured his submissions. The structure is the result of the fact that the appellant's first ground of appeal is that the primary judge failed to exercise jurisdiction by failing to provide adequate reasons and failing to consider fundamental aspects of the appellant's case. The appellant began by summarising the case he put to the primary judge and then he identified the way the primary judge dealt with that case. He then put his argument that the primary judge had constructively failed to exercise jurisdiction. 36 With respect to Grounds 2 and 3 in the Notice of Appeal, the appellant identified the two claims he made that he feared persecution in Sri Lanka by reason of his Tamil ethnicity and his status as a Tamil from the appellant's town in the Northern Province, or both. The appellant referred to these claims as the Ethnicity Claim and the Status Claim, and they are convenient descriptions. 37 The appellant's argument consisted of the following steps. First, the appellant submitted that in his statement attached to his application for a Protection visa, he clearly articulated a claim that he feared persecution by reason of his Tamil ethnicity, and his claim to fear harm based on his status as a Tamil from the appellant's town in the Northern Province was raised squarely on the material before the Authority. The appellant identified various matters in support of that contention. Secondly, he submitted that the claims should be understood as "generic claims" based upon the appellant's race and status. By generic claims, the appellant meant that he feared persecution simply due to his race (i.e., Tamil), or a particular social group to which he belonged i.e., Tamils from the appellant's town in the Northern Province. Thirdly, the appellant submitted that the Ethnicity Claim and the Status Claim were considered by the delegate and this establishes the nature and content of the appellant's claims for protection. Fourthly, he submitted that on a fair reading of the Authority's reasons, it failed to consider either the Ethnicity Claim or the Status Claim. The relevant part of the Authority's reasons shows that it did not examine any generic claim that the appellant feared persecution in Sri Lanka as a Tamil, or a Tamil from the appellant's town in the Northern Province. Fifthly, the appellant submitted that the Authority's error was of a similar nature to that identified by North J in SZQII v Minister for Immigration and Citizenship [2012] FCA 402; (2012) 126 ALD 479 (SZQII) at [15]-[20]. In that case, the reviewer dealt with the applicant's "special profile", but not his generic claim that as a young male Tamil, he had a justified fear of persecution in Sri Lanka. 38 In relation to s 473DD of the Act, the appellant submitted that the Authority erred in its construction and application of s 473DD(b)(ii). The appellant submitted that the Authority erroneously proceeded on the basis that the "credible personal information" referred to in the subparagraph had to be about the referred applicant. Secondly, the appellant submitted that the Authority erroneously examined the newspaper article and considered whether it may have affected the consideration of the appellant's claim that his friend had been abducted instead of him and failed to consider whether it may have affected the consideration of the appellant's Ethnicity Claim or Status Claim. 39 The appellant submitted that the primary judge was under a duty to provide sufficient reasons "in the sense that they engage with and adequately try the claim". The appellant referred to the decision in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 161 ALD 441 (BZD17) at [24] and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; (2018) 259 FCR 1 (COZ16). The appellant submitted that the basis for a judge's conclusions must be adequately exposed. Furthermore, he submitted that the judge must give proper consideration to a party's case by engaging in an active intellectual process directed at the claim being made. In this context, he referred to BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 (BDS17) at [75]; and COZ16 at [56]. 40 The appellant submitted that a primary judge's failure to give adequate reasons and failure to consider fundamental aspects of a party's case have been characterised as a constructive failure to exercise jurisdiction. The appellant's general submission was that the primary judge erred in two "interrelated" ways in that he failed to provide adequate reasons and failed to consider fundamental aspects of the appellant's case. 41 As a general comment, it may be said that with respect to Grounds 2 and 3, the appellant, for the most part, repeated the arguments that he had put to the primary judge. 42 I turn now to the first respondent's written submissions. 43 With respect to Ground 1 in the Notice of Appeal, the first respondent submitted that the primary judge was not required to set out every case relied on by the appellant, nor in minute detail, every submission that was made. He submitted that the questions before the primary judge were ultimately factual ones. The relevant principles were not in dispute. The primary judge considered whether the Authority had failed to consider the appellant's claims in relation to ethnicity and origins, and misapplied the test in s 473DD. The primary judge made findings and gave reasons for those findings that were responsive to the grounds raised. The Court did not constructively fail to exercise its jurisdiction. 44 The first respondent submitted that even if the Court had constructively failed to exercise its jurisdiction by failing to provide adequate reasons and failing to consider fundamental aspects of the appellant's case, the appeal should nevertheless be dismissed. He submitted that it would be futile to remit the proceedings to the Federal Circuit Court for the reasons he puts forward in relation to Grounds 2 and 3 (see BZD17 at [30]; CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 (CIT17) at [93]). 45 With respect to Ground 2 in the Notice of Appeal, the first respondent submitted that there are two answers to the complaint in this ground. First, the first respondent submitted that the claims were not made in the manner alleged. The appellant did not rely upon a "generic claim" to fear harm on account of his ethnicity or origins. The appellant provided content as to the reasons why and how he claimed to face harm on these grounds. In relation to ethnicity, the appellant claimed to fear harm from the Navy, EPDP, CID and "other Government Authorities". The basis upon which the harm was claimed to be feared was articulated by reference to a number of events and circumstances. Secondly, the first respondent submitted that the Authority's findings regarding the appellant's ethnicity and origins were dispositive. The Authority had regard to the country information and the appellant's individual circumstances and expressly rejected that he would face a real chance of harm arising from his ethnicity and origins. In the circumstances, to the extent that a claim arose in relation to these matters, it was expressly disposed of by the Authority. 46 With respect to Ground 3 in the Notice of Appeal, the first respondent submitted that the appellant has misconstrued the Authority's reasons. The Authority's decision with respect to s 473DD(b)(ii) turned on whether the information may have affected the consideration of the referred applicant's claims, not on the meaning of "credible personal information". With respect to the further submission that the Authority failed to have regard to the appellant's claims regarding ethnicity and origins, the first respondent submitted that this was not the significance of the newspaper article contended for by the appellant before the Authority and it was not open to the appellant to recast his claims at this stage of the proceeding. In any event, there was no basis for construing the Authority's reasoning as having excluded from consideration issues relating to ethnicity or origins, or both. The first respondent submitted that the difficulty for the appellant was that the newspaper article took his evidence no further than that which was already before the delegate and the Authority and which had been accepted in relation to the treatment of Tamils in his area at the relevant time. 47 Finally, the first respondent submitted that even if the Authority had made an error with respect to s 473DD(b)(ii), the challenge to this aspect of the Authority's decision must fail because the Authority had reached an unimpeachable conclusion that it was not satisfied there were exceptional circumstances to justify considering the new information within s 473DD(a).

Analysis 48 The appellant's written submissions were refined in the course of his oral submissions. 49 There have been a number of cases in this Court in recent times in which the Court has been asked to hold that the Federal Circuit Court has constructively failed to exercise the jurisdiction entrusted to it and that this is shown by a failure to deliver adequate reasons and a failure to consider fundamental aspects of an appellant's case (BZD17; CIT17; BDS17; and COZ16). 50 The test for determining whether there has been a constructive failure to exercise jurisdiction by the Federal Circuit Court has been described as follows: BZD17 at [25] (a real engagement and the provision of reasons which expose the conclusions reached); CIT17 at [40], [58] (adequate reasons showing engagement with the relevant submissions); and COZ16 at [56] (an adequate disclosure of the Court's reasoning process). In BDS17, Flick J provided the following summary (at [75]): 75 That which is called for when the legality of an administrative decision is under judicial scrutiny is: • an active engagement on the part of a judge at first instance with the arguments and submissions being advanced. There must be what the Full Court has described as a "real engagement" with the arguments or grounds being advanced for resolution: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [25] per Perram, Perry and O'Callaghan JJ. An appellate court should not be called upon to itself discharge the functions properly entrusted to a judge at first instance. 51 As far as I can see, in all of the cases of this nature, the primary judge's decision with respect to the merits of the application for judicial review will also be part of an appeal which raises a constructive failure to exercise jurisdiction. In such cases, a question arises as to the approach the Court should take. If the Court finds that there has been a constructive failure to exercise jurisdiction by the Federal Circuit Court, should the Court consider the merits of the decision of the Tribunal or Authority? There appears to be no one rule, although the Court should take into account the distinction between the trial court (the Federal Circuit Court) and the appellate court (this Court), and this Court should not be too ready to take on the role of the trial court as identified by Parliament. In AXL16 v Minister for Immigration and Border Protection [2018] FCA 208, Perram J said (at [26]): 26 That leaves the substantive ground pursued in the Court below. In light of the above findings this case has not yet been adequately tried. The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25]. It would erode the appellate nature of this Court's jurisdiction if it were routinely to carry out the Federal Circuit Court's work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 ('SZKLO') at [41] per Flick J. On this basis I decline to decide the substantive ground. 52 At the same time, what are essentially practical considerations may make it appropriate for this Court to effectively determine the grounds of judicial review as at first instance. In BZD17, the Full Court of this Court said (at [30]): 30 We agree that the considerations identified in AXL16 and AAM15 tell strongly against this Court ordinarily determining substantive grounds of judicial review which the FCC has failed to determine. Nonetheless in the circumstances of this case, we consider that there are a number of compelling factors against remitting the matter to the FCC. First, both parties submitted at the hearing that they wish the substantive issues on the appeal to be determined by this Court. Secondly, this is a case where, for the reasons given below, the errors are so apparent from the Tribunal's reasons that there would be no apparent utility in remitting the matter to the FCC. As such, we consider that the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) would best be served by this Court determining the substantive grounds of review of the Tribunal's decision, as reflected in Grounds 1 and 2(c) of the amended grounds of appeal. 53 This is a similar case to BZD17, although the errors of the Authority are perhaps not so obvious as the errors of the Tribunal were in BZD17. Nevertheless, both parties in this case have asked the Court to consider and decide Grounds 2 and 3, and in the course of the submissions with respect to Ground 1, I have also had the benefit of detailed submissions on the merits of Grounds 2 and 3. 54 I have reached the conclusion that Ground 2 must be upheld. Nevertheless, I will briefly summarise my conclusions with respect to Ground 1.

Ground 1 55 In [1]-[23] of his Honour's reasons, the primary judge summarised the background and findings of the Authority. In [24] his Honour sets out the grounds of the application for judicial review. 56 His Honour then deals with Ground 1 in two paragraphs, and Ground 2 in two paragraphs. Those paragraphs are set out above (at [31]-[32]). 57 With respect, it seems to me that the statements by the primary judge in [26] are, for the most part, assertions rather than a process of reasoning. The observations of Griffiths J in COZ16 at [48] are apposite: 48 These difficulties are not overcome by the fact that in [37] of the IAA's reasons for decision it stated that it had considered the appellant's circumstances "in their totality". It seems, however, that the primary judge viewed this statement as determinative (see [51] of his Honour's reasons). Whether in fact the IAA considered the appellant's circumstances in their totality fell to be determined not by a mere assertion to that effect by the IAA, but by a careful objective analysis of the IAA's reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant. The primary judge conducted no such analysis or evaluation and simply accepted and acted upon the IAA's bald assertion. 58 There is an equally significant problem with Ground 2. In the second and third sentences of [27], the primary judge has either confused the requirements in s 473DD(a) and (b)(ii) and run them together, or his Honour has failed to identify, if this is what he understood the argument to be, the argument that whether or not there was an error in the construction of paragraph (b)(ii), it is of no moment because the Authority found that paragraph (a) was not satisfied. 59 For these reasons and the approach to Grounds 2 and 3 which I consider appropriate as set out below, I conclude that the primary judge did not engage in the relevant sense with the appellant's claims.

Ground 2 60 In my opinion, the Ethnicity Claim and the Status Claim were made by the appellant. The appellant's statement which accompanied his application referred to his ethnicity and his place of birth and early years in that place. The appellant refers to the fact that he believes that if he was forced to return to Sri Lanka he would be seriously harmed because of "his Tamil Ethnicity and imputed LTTE connection" and that he fears this harm from "the Navy, the EPDP, the CID and other Government Authorities". He refers to the fact that his place of origin was previously a LTTE-controlled area. He refers to different rules for Tamils and Sinhalese "in the fishing so we can't do our job properly" and, later in the statement, to the fact that two Tamil men and a woman from the appellant's town in the Northern Province were abducted from his village. 61 In the appellant's interview with the delegate, the following exchange took place. I: Oh, so this year. So once again, while I find you may have attended this, I don't believe this would be of adverse interest if you were to go back to Sri Lanka. So apart from what we have talked about today, is there anything else that you feel I should know about why you cannot go back to Sri Lanka? P: If I return I will face problems, they are not going to leave me alone. I am from [REDACTED]. I wanted to live an honest life, I wanted to study, unfortunately, I came across this incident. And from one of the last elections, one of my friends, he contested for EDPD, and if I return, he will come after me. 62 Perhaps the most persuasive piece of evidence to the effect that the Ethnicity Claim and the Status Claim were advanced is that they were both addressed by the delegate. 63 With respect to the Ethnicity Claim, the delegate addressed this claim under the heading, "Assessment - risk of harm on account of Race - Tamil". After examining country information (which is not before me) the delegate expressed the following conclusions: I acknowledge that the country information suggests that people of Tamil ethnicity may be subjected to some extent of societal discrimination, and some members of the community may be at risk of being harassed or harmed because of their profile, particularly in the north and east of the country. However, the above country information has not satisfied me that ethnic Tamils are currently subject to a real chance of persecutory conduct purely by virtue of their race; therefore I do not consider the applicant's fear of persecution with regards to his Tamil race to be well-founded. 64 The delegate went on to consider the significance of the fact that the appellant was a Tamil from a former LTTE-controlled area in the Northern Province. In this context, the delegate said: Although the applicant did not explicitly make a claim in relation to this, I have considered whether he would be targeted for being a Tamil who lived in an area previously controlled by the LTTE. 65 The claims having been made, the Authority was required to consider them. To do no more than state a claim and then to reject it without any reasoning is not a consideration of the claim. 66 The Authority did refer to the appellant's ethnicity and his origin in its summary of the appellant's claims (see [18] above). The appellant made the point that his ethnicity and status are not referred to in the Authority's statement of the grounds of his fear of harm or death (i.e., the last dot point). That is to be accorded some weight. It also expressed the conclusions previously identified (at [26]-[27] above). The Authority did refer to country information which was referred to by the delegate and it made findings which, on the face of it, would be relevant to the Ethnicity Claim and the Status Claim, for example, that neither the appellant nor his family had been subject to roundups or interrogations (at [18] of the Authority's reasons) or questioning by the authorities (at [19] of the Authority's reasons). However, the Authority never clearly identified the claims and dealt with them by a process of reasoning. In my respectful view, the Authority made a jurisdictional error of a similar type to that identified by North J in SZQII. In that case, North J said (at [19]): 19 The reasons of the reviewer do not expressly deal with the generic claim. The generalised conclusions in [27] and [29] must be read in the context of the reasons of the reviewer as a whole. That context relates to the claims made concerning the particular events in 2004 and 2009 and does not address the general situation of Tamils in Sri Lanka in any way which the Court can identify as having grappled with a separate and distinct claim. The reviewer therefore fell into jurisdictional error by failing to consider the claim made by the appellant in this respect. It follows that the appeal should be allowed. I will, however, briefly deal with some of the other grounds of appeal. 67 I uphold Ground 2.

Ground 3 68 The appellant's first argument depends on construing the Authority's reasons for deciding that the requirement in s 473DD(b)(ii) was not satisfied as being to the effect that the information was not credible personal information. The argument was that that was not correct because personal information can be about a person other than the appellant (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600). That argument must be rejected because that was not the basis of the Authority's decision. The basis of the Authority's decision as revealed by the passage it italicised was that it was not satisfied that the newspaper article may have affected the consideration of the appellant's claims (my emphasis). 69 The appellant's second argument proceeds (correctly) on the basis that the Authority's decision was that it was not satisfied that the newspaper article could have affected the consideration of the appellant's claim. The argument was that the Authority did not consider whether the newspaper article may have affected the appellant's Ethnicity Claim and Status Claim. The Authority's decision on exceptional circumstances did not answer the point because the correct decision with respect to paragraph (b)(ii) may have affected its decision on exceptional circumstances. 70 I reject this argument because I do not think an error of the type described was material (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599). The Authority accepted that the abduction took place and I am unable to see how the newspaper article may have affected consideration of the appellant's Ethnicity Claim and Status Claim. There is an alternative reason for rejecting the argument. Although a failure to consider paragraph (b)(ii) or the provision of an incorrect answer with respect to the paragraph may affect the determination of exceptional circumstances (BYI18 v Minister for Home Affairs [2019] FCA 803 at [19]), I fail to see how it could do so in the circumstances of this case. 71 I reject Ground 3.

CONCLUSION 72 For the above reasons, the appeal must be allowed and the orders of the Federal Circuit Court set aside. The decision of the Authority must be quashed and the matter remitted to it for reconsideration according to law. The parties have indicated that they may be able to reach agreement on the question of costs. I will give them the opportunity to do so. If that fails, I will put in place a regime for the filing of submissions on costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Migration Act 1958(Cth)s 473DD

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)