ANF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE DECISION OF THE IAA 4 The IAA summarised the claims made by the appellant as follows: • The applicant worked with the Liberation Tigers of Tamil Eelam (LTTE) in a medical unit as a helper from about 1991 until 1992, and then in a clerical role with the Tamil Eelam Administration until 2002. • At the end of the civil conflict in May 2009 the applicant was detained for approximately two years, including in a rehabilitation centre. As a rehabilitated former LTTE member the applicant fears harm and mistreatment from Sri Lankan authorities, including the Criminal Investigation Department (CID) and the Sri Lankan Army (SLA). • He fears harm from government-affiliated paramilitary groups in Sri Lanka. • He fears he will be harmed because of an imputed political opinion of opposition to the Sri Lankan authorities because of his: • Tamil ethnicity • work with the LTTE • status as a former LTTE affiliate • oldest brother's active high ranking role in the LTTE • illegal departure from Sri Lanka and application for asylum in Australia. • He fears he will be arrested and detained, tortured, threatened, killed or suffer a disappearance, as happened to many rehabilitated LTTE cadre, if he returns to Sri Lanka. • He would not be protected by the Sri Lankan authorities because it is the authorities he fears. • There is no part of the country to which he could safely relocate as local authorities and paramilitary groups in the new area would become aware of his arrival and he would be at risk of persecution. 5 The IAA noted that the appellant's submission contained a new claim that the appellant fears harm because of the disappearance of his brother in 1990, and that this is a cumulative factor for his fears, and that his family were victims of the tsunami disaster at Periyakallar in 2014 and lost a lot of documents including documents relating to the proof and cause of death. The IAA addressed the new information before it as follows: 5. The submission includes the new claim that the applicant fears harm because of the disappearance of his brother in 1990, and this is a cumulative factor for his fears, and that the applicant's family were victims of the tsunami disaster at Peiyakallar [sic] in 2014 and lost a lot of documents including relating to the proof and cause of death. 6. This claim regarding the applicant fearing harm because of his brother's disappearance in 1990, and regarding his family being affected by the tsunami in 2014 and losing documents relating to his brother's death, was not before the delegate and is new information. I note the applicant did not make this claim during the Arrival interview, the Transferee interview, in his statement of claims, or at the TPV interview. No explanation has been provided in the submission as to why this claim is only being made now, or why it should be considered by the IAA. I note the applicant was represented at the TPV interview. The applicant was given ample opportunity to raise this claim, including being told at the beginning of the interview of the importance of providing complete information, and that he may not have another chance to provide further information in support of his claims. The fact that this claim is only being made now raises a question as to the veracity of the claim. The applicant has not satisfied me the information could not have been provided before the delegate's decision, or that it is credible personal information that if known may have affected consideration of the applicant's claim. Furthermore, I am not satisfied there are any exceptional circumstances to justify consideration of the new claim. 7. The submission also attaches copies of two country information reports both of which were before the delegate and are not new information: • Department of Foreign Affairs and Trade, "DFAT Country Information Report Sri Lanka", 24 January 2017UK Home Office; • "Country Information and Guidance - Sri Lanka: Tamil separatism", Version 3.0, August 2016. 8. The submission also requests the applicant be called for an interview by the IAA if required, and gives consent to the IAA to contact the International Committee of the Red Cross (ICRC) and International Organization for Migration (IOM) to confirm his claims. I note, pursuant to s.473DC of the Act, the IAA may invite a person to give new information, in writing, or at an interview. However, there is no duty on the IAA to get, request or accept any new information whether requested to do so by the referred applicant or by any other person, or in any other circumstances. In this case, the applicant has raised no issue that would warrant the IAA issuing an invitation to provide new information, whether at an interview or otherwise. 6 The IAA accepted that the appellant worked in a medical unit with the LTTE, and that after being wounded in this role, he worked as an office assistant for the Tamil Eelam Administration until 2002. Having regard to documentary evidence provided by the appellant, the IAA did not accept that he was detained in a rehabilitation centre in 2009, or that he was of interest to the Sri Lankan authorities as a result of his prior work with the LTTE. The IAA found that the appellant's evidence regarding his eldest brother's involvement with the LTTE was vague and not convincing. The IAA did not accept that the appellant's oldest brother (SM) was a high ranking LTTE member, however, it considered that it was plausible that SM may have been involved with the LTTE. The IAA noted that appellant also referred to his other older brother, SR, who disappeared in 1990. The IAA accepted that the appellant travelled to Thailand in 2002 and remained there for six months. It also accepted that he obtained a passport from the authorities in order to travel. This, it considered, indicated that the appellant was not a person of interest to the authorities at the time, because if he was suspected of being an LTTE member of supporter, he would not have been issued a passport and permitted to travel to Thailand. 7 The IAA considered country information regarding the treatment of involuntary returnees to Sri Lanka, people of Tamil ethnicity, and those with previous links to the LTTE, and concluded that there was not a real chance that the appellant faced harm on his return to Sri Lanka. The IAA found: 57. I am satisfied the applicant will be identified on arrival in Sri Lanka as having departed illegally and he may be detained for up to a few days, and he may be fined. If the applicant is detained he may be subject to poor prison conditions. I am not satisfied the treatment of the applicant during airport processing, the imposition of a fine, or the poor prison conditions the applicant may be briefly subjected to, considered individually or in combination, constitute significant harm. There is no evidence to indicate the applicant faces the death penalty for any reason, and I do not accept there is a real risk the applicant will be arbitrarily deprived of his life or tortured during or as a result of this process. I am not satisfied the treatment the applicant may face as a consequence of his illegal departure amount to cruel, inhuman or degrading treatment or punishment. Specifically, I am not satisfied there is an intention to inflict pain or suffering, severe pain or suffering, or to cause extreme humiliation. 58. Considering the applicant's circumstances individually and cumulatively, I am not satisfied he will suffer a real risk of significant harm. 8 The IAA also considered the effect of a data breach that had taken place in 2014, and concluded that it would not alter the appellant's position upon his return to Sri Lanka: 43. On 14 March 2014, the Department advised the applicant some of his personal information had unintentionally been made available on the Department's public website for a short period of time in February 2014. The information included the applicant's name, date of birth, nationality, gender, detention status, and whether there were other family members in detention. No details regarding the applicant's contact details or any information about his protection claims was included in the information. 44. The applicant indicated in his TPV application, and at the TPV interview, he expected harm from the Sri Lankan authorities on his return as a result of the data breach because he had given information against Sri Lankan authorities and government. 45. I accept the applicant was affected by the Department's data breach and that some of his personal information may have inadvertently been disclosed online, however, I consider the chances the applicant's information was accessed are remote, and even if the information was accessed it would reveal no more than that he was seeking asylum in Australia. This fact will be apparent to authorities in Sri Lanka considering the manner of his return to Sri Lanka. 9 The IAA concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act, and was also not entitled to protection under s 36(2)(a) or s 36(2)(aa) of the Act.

THE DECISION OF THE FCCA 10 The appellant's first ground of review before the primary judge in the FCCA was that the IAA misconstrued or misapplied s 473DD of the Act, by not considering new material submitted and not finding that there were exceptional circumstances. The application to the FCCA contained 8 particulars, which alleged errors in the IAA's decision. These grounds as a group were to the effect that the IAA erred in not being satisfied about the risk of serious harm to the appellant if he is returned to Sri Lanka. None engaged with the facts of the appellant's own application, but rather stated variously that the IAA erred: in finding that the requirements of s 5H, s 36(2)(a) or s36(aa) of the Act had not been met; in not being satisfied that he would face harm upon his return to Sri Lanka as a failed asylum seeker; in not finding that he has a well-founded fear of persecution within s 5J; in not finding that there is a real chance of harm being visited upon him as a result of any LTTE links for any imputed political opinion as a Tamil from the East of Sri Lanka; in affirming the delegate's decision; and in not granting the Temporary Protection Visa. 11 After citing relevant authority as summarised in ARP18 v Minister for Home Affairs [2019] FCA 472 at [21] - [23], the primary judge addressed the question of considering "new information" under s 473DD and was satisfied that the IAA correctly applied the requirements of the section. In this regard the primary judge said: 35. As regards this particular case, I am satisfied the reviewer correctly applied the legislative requirements in s 473DD. The reviewer turned their mind as to whether the information was "new" and concluded it was not. If anything, the reviewer concluded the information raised an issue as to the veracity of the claim. 12 It is apparent from what followed that the erroneous statement that the IAA considered that the information was not new was a typographical error. In fact the IAA concluded that it was new information and, as the primary judge records, went on to consider whether it should receive that information within s 473DD of the Act. The primary judge concluded that in so doing, the IAA did not fall into error (at [38]). 13 The primary judge dealt briefly with the remaining grounds: 39. As regards the balance of the matters set out in the application for review, the applicant simply disputes the factual findings of the reviewer. It is not for this Court to engage in merits review as it is restricted to only findings on jurisdictional error in order for it to find in favour of the applicant. 14 As a result, the application was dismissed.

THE APPEAL 15 I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Temporary Protection Visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA's decision to refuse to grant the Temporary Protection Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the IAA's decision to refuse to grant the appellant the Temporary Protection Visa is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth). 16 Ground 1 is that the FCCA erred in dismissing the case on the ground that the additional information did not satisfy s 473DD of the Act. In particulars appended to the ground, the appellant contends that the IAA omitted to consider the new information provided to it, which was not available to the appellant at the time of the decision of the delegate, and that exceptional circumstances existed for it to be considered by the IAA. 17 Section 473DD of the Act provides: 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 Immigration Assessment Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Immigration Assessment Authority that, in relation to any new information given, or proposed to be given, to the Immigration Assessment 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. 18 At [5] of its reasons, the IAA records the two new claims advanced by the appellant, first that he fears harm because of the disappearance of his brother in 1990 and that this is a cumulative factor for his fears. This may be taken to mean that, in addition to the claims the appellant has already articulated, he also claims to fear harm because of the disappearance of SR. Secondly, that the appellant's family were victims of the tsunami disaster at Periyakallar in 2014 and lost a lot of documents including in relation to the proof and cause of his brother's death. 19 In relation to the first, the disappearance of SR was mentioned by the appellant in his March 2013 statement. The delegate mentions in his reasons that "while the applicant claims that his brother 'disappeared' in 1990 and has not been seen since, he does not claim to fear harm for this reason". Even so, the delegate proceeds in his summary of conclusions to reject a claim that the applicant fears harm because of the disappearance of SR in 1990. 20 The decision of the IAA somewhat rolls up the reasons for rejecting the two new claims. 21 The IAA notes at [6], after identifying the two new claims, that in relation to both (which are described in the singular): "the applicant did not make this claim during the Arrival interview, the Transferee interview, in his statement of claims or at the TPV interview. No explanation has been provided in the submission as to why this claim is only being made now, or why it should be considered by the IAA". 22 In relation to the "cumulative factor for his fear" claim, plainly enough the appellant could have raised it in any of the arrival interview, the transferee interview, in his statement of claims or the TPV interview. It was information that the appellant could have provided to the Minister before he made his decision under s 65 (s 473DD(b)(i)). Furthermore, the IAA considered that the absence of an explanation for not raising the claim earlier and the fact that it was only raised before the IAA gives rise to a basis for doubting its veracity, a matter material to its consideration of the material under s 473DD(b)(ii). 23 In relation to the tsunami claim, the evidence indicates that the arrival interview was conducted on 7 September 2012, the transferee interview took place on 28 November 2012, and the appellant's statement was prepared on 22 March 2013. None of these could have concerned the alleged loss of documents arising from the tsunami, which was in 2014. However, both the appellant's application form for a temporary protection visa and the temporary protection visa interview were later, on (respectively) 12 September 2016 and 6 December 2016. There was no error on the part of the IAA in reaching the conclusion, as it did at [6], that there was ample opportunity for the appellant to raise the additional claim then. The absence of making the claim at that time also provides a factual basis upon which the IAA could conclude that this raised a question as to the veracity of the claim and a basis for concluding, in accordance with s 473DD(b)(ii), that it was not satisfied that the information was not credible personal information which was not previously known, or that it was not and could not have been provided to the Minister before his decision under section 65, in accordance with s 473DD(b)(i). In relation to both aspects of the new claim, the chronology of events provided a basis upon which the IAA could conclude that, having regard cumulatively to the circumstances raised, the requirement of exceptional circumstances in s 473DD(a) was not met. In this regard, see AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [13] (McKerracher, Murphy and Davies JJ) and Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [31] (Gageler, Keane, Nettle, Gordon and Edelman JJ). 24 Having regard to the reasoning of the IAA, the appellant has not established that the primary judge erred in dismissing this ground. Accordingly ground 1 must be dismissed. 25 Ground 2 is that the FCCA erred in dismissing the case as all the evidence adduced was not considered by the IAA. In particulars appended to this ground the appellant contends as follows: The appellant at the time of interview before the delegate had adduced evidence regarding the disappearance/death of his brother in 1990 at the time of detention and interrogation by the Sri Lankan Government authorities and consequently the feared that upon the appellant's return to Sri Lanka he will also be eliminated. This evidence was never considered by the delegate or the IAA at the time of making the decision on the application. 26 This ground was not raised before the FCCA. Accordingly, leave is required before it may be advanced on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] - [47] (Kiefel, Weinberg & Stone JJ). Where there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused: VUAX at [48]. 27 Contrary to the contention in this proposed ground, the claim advanced was considered and rejected by the delegate (see [19]) above. The IAA noted at [18] of its reasons that the appellant claimed that SR disappeared in 1990 and that about two months before he went missing he was assaulted by the EDP because of his other brother's (SM's) political activity. The applicant indicated that SR may have been taken by either the Sri Lankan authorities, or by a paramilitary group working with the government. Consistent with its rejection of the cumulative fear factor claim as new information not falling within s 473DD, the IAA noted that the appellant did not claim to fear harm as a result of the disappearance of SR. Having regard to the rejection of this additional claim, the basis upon which it is put in ground 2 is not now available. It was not before the IAA and had it been raised before the FCCA it could not have succeeded. The same applies in this Court. 28 Accordingly, in my view there is insufficient prospect of success of the proposed ground to warrant the grant of leave to proceed with it. 29 Although no ground of appeal raises the point, in his written submissions counsel representing the Minister properly draws attention to the erroneous service of a notification under s 473GB of the Act in respect of a Document Assessment Checklist that concerned the assessment of the appellants Sri Lankan National identification card. That notice was at the time considered to be invalid because it was based on the erroneous assumption that simply because a document is a departmental working document, it is covered by s 473GB: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [62] and [87] (Kenny, Tracey and Griffiths JJ). Despite the certificate, and his expressed concerns as to its cogency, the conclusion of the delegate (to the extent that it matters) was that he was satisfied that the appellant was the person whom he claimed to be. There is no reference to the certificate in the reasoning of the IAA, and it too was satisfied that the appellant's identity was as claimed (at [12] and [13]). In his reasons, the primary judge notes the issue and expresses satisfaction that the case has proceeded on the basis that the appellant is the person who he says he is. As a consequence, no injustice arises for him arising from the incorrect issue of the certificate (at [30]). No error is apparent from that conclusion, particularly having regard to the conclusion of the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091 at [2]. 30 Furthermore, as the Minister submits, the IAA's approach to the material did not result in practical injustice: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 at [3], [38], [45] and [48].

DISPOSITION 31 For the reasons set out above the appropriate orders are: (1) The appeal be dismissed. (2) The appellant pay the first respondent's costs of the appeal. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.