THE APPEAL
9 At the hearing before me, Mr Singleton of counsel appeared briefly for the appellant. An adjournment was sought until a date in August to give the appellant time to obtain legal representation. Given the history of the matter, I declined to grant the adjournment sought, but did give Mr Singleton 14 days within which to file and serve any written submissions on behalf of the appellant, with the Minister to respond within seven days thereafter. I also informed the parties that whether I would convene a further hearing for oral argument would depend upon the content of any submissions filed. As it happens, no written submissions were filed, although Mr Singleton informed the Court (by email) that this was not be taken as a comment on the merits of the appeal. The Court is indebted to Mr Singleton for the assistance he gave the appellant.
10 I now turn to consider each of the grounds of appeal.
11 As to the first ground, I am satisfied that the IAA took into account the appellant's reasons or motivation for going to Negombo. Paragraph [4] of the IAA's reasons include the following statement:
As it was not safe to remain at his family home, the applicant fled to Negombo, Western Province, where he resided with a friend…
12 Then at [19] and [22] the IAA said:
In his SHEV statement, the applicant claimed that around one to two days after returning to the family home, he heard the sound of motorbikes approaching at night. The applicant feared he would be harmed so he escaped through the rear entrance of the home and fled to his aunt's home where he remained for a week. In the SHEV interview, the applicant claimed that he stayed at his aunt's home for nine to ten days. Later in the interview, the applicant said that he stayed with his aunt for one week.
…
The applicant claimed that soon after the shooting incident of September 2008, he travelled by ship to his friend's home in Negombo, Western Province, where he remained until he departed Sri Lanka in August 2012.
13 When these three paragraphs are read together, it is plain that the appellant's reasons for going to Negombo were considered by the IAA. Ground one is rejected.
14 The Minister made the following submission in writing in relation to the ground two:
The [IAA] does not expressly refer to the invalid Protection visa application in its reasons for decision. However the mere fact that a document is not referred to in a decision-maker's reasons does not necessarily mean the matter was not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31]. There is no evidentiary foundation on which to infer that the [IAA] overlooked the applicant's invalid application for a Protection visa. The applicant bears the onus in this respect: SZGUR at [67].
Further and in any event, the applicant has not demonstrated that any part of the invalid Protection visa application was of some import when regard is had to its cogency and its significance to the decision-maker's reasoning: see Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [54], [56], [58]. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J held at [111] that the 'fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error' and, at [112], that whether the Tribunal is obliged to consider evidence depends 'on the circumstances of the case and the nature of the document', including 'first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims.' See, similarly, SZSRS at [29].
15 With respect, that submission should be accepted. The statutory declaration which accompanied the invalid Protection visa application was before the IAA as part of the material sent to it pursuant to s 473CB of the Migration Act 1958 (Cth). At [3] the IAA said:
I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). No further information was obtained or received by the IAA.
There is no reason to suspect from the detailed narration of the facts that it was not considered. In any event, its contents did not add anything to, or contradict, the facts found by the IAA.
16 On the one contested issue concerning production of the appellant's identity card, I am satisfied that the statutory declaration added nothing to the statements made by the appellant in his SHEV application, which was expressly considered by the IAA. The statutory declaration given in support of the SHEV application relevantly states:
One of the four men spoke in Tamil and asked what was the problem and as to why I was taking the GS to Karaveddy. I told them that my friend's father had been shot and killed. The men took my National ID card (NIC) from me and asked me what was my involvement in this incident.
At that moment the GS and the four armed men got into a heated argument. The GS who was a Tamil spoke Sinhala hence he was able to communicate with the armed men. The GS prevented the men from taking away my NIC.
17 The statutory declaration given in support of the invalid Protection visa application describes the incident in similar terms. It states:
They asked me what my problem was, and why I was taking the GS Officer to Karaveddy. They also asked how I was related to [S] and demanded my National ID Card. I replied that [S] was my friend's father.
At that point, the GS Officer had a heated discussion with the four men in Sinhala, four [sic] around 15 minutes. He didn't allow the masked men to take my National ID Card.
18 The foregoing evidence is also consistent with what the appellant had said in his SHEV interview, considered in the reasons of the IAA. In each case, the appellant's claim remained essentially the same, namely that the Grama Sevaka prevented production of the identity card to the four men.
19 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, French, Sackville and Hely JJ said at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
20 In my view, if there was a failure on the part of the IAA to refer to or consider the statutory declaration given in support of the invalid Protection visa application, it was not evidence that might have led the IAA to make a different finding of fact.
21 The appeal is dismissed with costs as agreed or assessed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward j.