BKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 242

1. The background facts were not in dispute.
2. The appellant is a Sri Lankan citizen who arrived in Australia on 27 August 2012. He is of Tamil ethnicity. He claimed to fear harm, in particular by reason of connections to the Liberation Tigers of Tamil Elam (LTTE).
3. On 18 January 2013, the appellant participated in an entry interview where he stated that he feared harm from the "civil office" of the Sri Lankan Army (SLA). The appellant claimed that he was detained, beaten and threatened by the civil office, who wanted to question him about his brothers' involvement with the LTTE. He claimed that this occurred on 26 October 2011 and he was detained for 17 days: AB14.
4. The appellant applied for a Protection (Class XA) visa with the assistance of a registered migration agent: AB 22. He provided a statutory declaration dated 21 July 2013 with that application: AB81. This application was deemed to be invalid as the appellant was barred from applying for the visa by s 46A(1) of the Migration Act 1958 (Cth): AB87.
5. The statutory declaration included claims that:

(1) The appellant's brother (S) was forced to join the LTTE in 2006. After the LTTE were defeated, his brother was held at an army camp where he was tortured.

(2) Although he was not a combatant, the appellant worked for the LTTE's transport unit between March 2007 and December 2007, transporting injured troops, civilians and essential items.

(3) The appellant and his other family members were held at a different Internally Displaced Persons (IDP) camp from his brother until 26 February 2010.

(4) After he was released from the IDP camp, the authorities continued to come to the appellant's home to interrogate him.

(5) On 27 May 2011, whilst he was staying at a friend's house, six uniformed Sri Lankan officers went to his home looking for him. He went home to find his wife screaming half naked; he picked up an axe and was grabbed by three army officers. He was "spared" because a big crowd had gathered and was told to report to the civil office in Location X the next day. He did not report to this office as required.

(6) Following this event, he kept a low profile whilst the Criminal Investigation Department (CID) were looking for him.

(7) On 10 June 2012, the appellant was arrested and detained for 17 days in the Location X army camp. He was accused of, and beaten for, being a former LTTE member. His interrogators accused him of being in the LTTE because his brother was a member. He was hung upside down and beaten with plastic pipes containing a "concrete-like substance". He was released on 27 June 2012 and told to report to the civil office on 10 July 2012.

(8) He did not report to the civil office, and he fled Sri Lanka on 11 August 2012. His wife moved to Location W with her brother as it was not safe for her to remain alone.

(9) His mother informed him that SLA officers had come to her house in search of him.

(10) He feared harm: as a Hindu Tamil who had lived in the Location Y area all his life, from Sinhalese Buddhists in Sri Lanka; as a relative of his brother S who had been an LTTE combatant; for working with the LTTE; for failing to report to the civil office; and for departing Sri Lanka illegally.

1. On 7 October 2015, the appellant applied for a Safe Haven Enterprise visa (SHEV) with the assistance of his authorised representative: AB94, 145. The appellant relied on his previous claims for protection and provided an updated statutory declaration (though it was almost identical to the one he had provided with his first visa application): AB136.
2. On 10 November 2016, a delegate of the then Minister for Immigration and Border Protection refused the SHEV. The delegate accepted that the appellant's brother was an LTTE member and that the appellant had provided transport for the LTTE, but did not accept that the appellant was a person of interest to the SLA or CID since his release from the IDP camp in August 2009.
3. The delegate accepted that officers came to the appellant's house in May 2011, but did not accept that they intended to abduct or harm the appellant or that there had been any interest in the appellant since a "single enquiry", made between August 2012 and February 2013: AB184.
4. Having referred to country information, the delegate found that the appellant would not face harm on account of his suspected LTTE involvement and that it was "highly improbable" he would be identified as having a profile of interest to Sri Lankan authorities: AB 187, 190. The delegate also found that the appellant would not face persecution on account of his Tamil ethnicity or Hindu religion: AB191, 192.
5. The matter was referred to the Authority on 15 November 2016: AB 195. On 23 December 2016, the appellant's representative lodged a five‑page submission which contained arguments disputing the delegate's findings and extracts from relevant country information: AB 205.
6. The Authority affirmed the delegate's decision on 9 March 2017. The Authority summarised the background facts and the appellant's claims at A[10]. The Authority accepted that S was forcibly recruited into the LTTE from 2006 and that, at the end of the war, S was detained and sent to a rehabilitation camp: A[17]. The Authority also accepted that while he was in the IDP camp the appellant was questioned about his brother S. The Authority accepted that the appellant did some work for the LTTE, including providing some transport services from March 2007 to December 2007, but did not accept the extent of the claims which had been made in that respect. This is explained at A[18] and [19] (references omitted):
   1. The applicant claimed he was not harmed during this questioning at the camp because he did not divulge the role he played for the LTTE's transport unit in 2007. At his SHEV interview, the applicant stated he worked for the LTTE's transport unit from 2007 to 2009. When the delegate put to him that in his application he stated it was from March 2007 to December 2007, the applicant stated he worked for the LTTE until they moved to the IDP camp in 2009. He then stated that he continued with his transport work in 2008 but that whenever the LTTE called him he helped them because people that lived in the LTTE area had to contribute to the LTTE cause.
   2. Country information indicates that all people living in LTTE controlled areas necessarily had contact with the LTTE and its civilian administration in their daily lives. As noted above, the applicant did not make any claims in his entry interview about the LTTE, either that he had a brother in the LTTE or that he worked for them in the transport unit. Nor was he able to provide much detail about how that work came about other than stating he tried to avoid them but they kept coming and forcing him to work. Given the country information referred to I am, nonetheless, prepared to accept as plausible that the applicant did some work for the LTTE. I do not, however, accept that he worked for the LTTE's transport unit from 2007 to 2009. This claim is inconsistent with his SHEV application and with his statutory declarations of July 2013 and September 2015. I consider that the applicant has exaggerated the length of time he worked for the LTTE and I find that the applicant provided some transport services for the LTTE from March 2007 to December 2007.
7. The Authority rejected a number of other claims. Taking into account contradictions in the appellant's evidence, the Authority had concerns about the appellant's reliability as a witness and was not persuaded that he was a person of interest to the authorities when he left Sri Lanka: A[30]. In particular, the Authority found that:

(a) SLA officers had come to the appellant's home in May 2011 and arrested him but he was ultimately released. His claims that he remained living and working in the area were implausible in light of his claim to have been a person of interest to authorities: A[32]. The appellant was not required to report the next day or subsequently pursued by the authorities: A[33].

(b) The appellant had provided inconsistent evidence about his detention at an SLA camp in June 2012 and failed to mention it at his entry interview: A[34]. It was implausible that he would fail to mention something so serious as being tortured at his entry interview and his responses to the delegate's questions about the incident were "hesitant and vague" and, as such, cannot be accepted to have occurred: A[35]. After the June 2012 incident, the appellant was not required to report to authorities: A[36].

(c) The appellant had "fabricated" his claims that SLA officers had come to his mother's home looking for him or his brothers following their departure from Sri Lanka. The appellant had not claimed that his brother was subject to reporting or monitoring after rehabilitation, or that he received any visits from Sri Lankan authorities after his release from rehabilitation. It was implausible that the SLA or CID would come to his mother's home enquiring about his (or his brother's) whereabouts after the May 2011 incident and it was not established that his wife moved to her brother's home in Location W because it was not safe for her to remain alone in Location Z: A[37].

1. The Authority was not satisfied that the appellant was otherwise a person of interest to authorities due to his actual or imputed political opinion or links to the LTTE: A[38].
2. The Authority found that the appellant did not face a risk of harm on the basis of either his brother's membership in the LTTE, or because he transported goods or people for the LTTE: A[38]. The Authority found that the appellant's brother had undergone rehabilitation and travelled to Turkey in 2012. The appellant did not claim to have been questioned about his brother after the IDP camp, and the appellant did not claim that his brother had left Sri Lanka unlawfully or while the brother was under reporting conditions. It found that the brother left Sri Lanka lawfully: A[39].
3. With regard to the appellant's work for the LTTE, the Authority found that there was no evidence that Sri Lankan authorities were aware of his work or that he came to the attention of authorities because of it. The appellant's fears that others would inform the authorities about his work for the LTTE were "speculative": A[40].
4. The Authority accepted that, because the appellant fled Sri Lanka illegally, he would be perceived as an illegal departee and a failed asylum seeker from the West: A[51]. With reference to country information and its previous findings, it was not satisfied that the appellant faced a real chance of harm for these reasons: A[50] and [54]. The Authority accepted that the appellant would be investigated; detained for several hours at the airport; and, in the worst case, detained on remand for a number of days pending bail and then fined. It found that this process did not amount to significant harm. It accepted that the appellant may be detained in poor conditions, however it considered these did not arise due to an intention by officials to inflict pain or suffering and was not satisfied that the treatment amounted to significant harm: A[60]-[68].
5. The Authority found that the appellant did not have a well‑founded fear of harm, did not meet the definition of a refugee in s 5H(1) of the Act and did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act: A[59] and [68].

1. The appellant's application for judicial review was heard and determined in the Federal Circuit Court on 18 June 2021. The appellant, by his solicitor, relied on a single ground of review: a contention that the Authority's finding that the appellant's brother (referred to as S by the Authority and X by the Federal Circuit Court) had left Sri Lanka lawfully, was legally unreasonable: J[40], [41]. The appellant's submissions were summarised at J[42] in the following way:

The written submissions and oral submissions identified the significance of the brother X and the role that he had played and the applicant's claims in relation to the brother X. The submissions focused in particular on the finding that the brother had left lawfully, made at paragraph 39 of the Authority's decision. The submissions contended that it was not open to the Authority to infer that the brother had departed lawfully, that there was no probative evidence that he departed lawfully, and that this was, accordingly, a legally unreasonable finding. Mr Hodges also advanced submissions as to the materiality of the finding.

1. The primary judge dismissed the application concluding that the finding that S left Sri Lanka lawfully was open: at [43]-[45].

1. By an amended notice of appeal filed with leave at the hearing, the appellant relies on one ground of appeal (although the particulars and submissions include arguments or issues which were not raised below):

The decision of the IAA was legally unreasonable as a critical finding of fact underpinning the decision was unsupported by probative evidence.

1. The particulars of the ground of appeal are as follows:
   1. The IAA accepted that the applicant's brother was a LTTE member who had been detained and sent to a rehabilitation camp.
   2. The IAA accepted as plausible that the brother 'S' was forcibly recruited into the LTTE from 2006 and that at the end of the war S was detained and sent to a rehabilitation camp. It is not specifically stated by the IAA, but the inference is that the IAA accepted that S was a combatant until the end of the war.
   3. The IAA accepted that if the applicant if returned that fact that the applicant's brother underwent rehabilitation will come to light.
   4. The IAA considered the contents of the DFAT report which claims that close relatives of claims to have been arrested detained because of their family connections with former LTTE members.
   5. The IAA considered the contents of the DFAT report which claims that close relatives of LTTE members who may be wanted by the authorities are likely to be subject to monitoring.
   6. The IAA made a finding that the applicant's brother left Sri Lanka lawfully.
   7. The finding made by the IAA that the applicant's brother left Sri Lanka lawfully is based on the following reasons:
      1. The applicant did not claim that he (the applicant) was ever questioned about his brother S.

b. The applicant did not claim that his brother S left Sri Lanka illegally.

1. The brother did not claim that his brother S left Sri Lanka while under reporting conditions.

2. It was [not] open for the IAA to find that the applicant's brother S departed lawfully for the reasons stated.

3. There was no probative evidence that the applicant's brother S had in fact departed lawfully.

4. It was therefore unreasonable for the IAA to make the finding "Given this, the applicant's own lack of profile . . . I am not satisfied that there is a real chance of serious harm to the applicant by the Sri Lankan authorities on the basis that his brother, S, was former LTTE member (sic).

5. The Authority's LTTE Finding is contrary to country information and is unreasonable because does not disclose an evident or intelligible justification

   a) The IAA was not otherwise satisfied that at the time he left Sri Lanka, the applicant was a person of interest to the authorities on the basis of his actual or imputed political opinion.

   b) The IAA was not satisfied that the applicant is at risk on the basis either of his brother's membership of the LTTE or because he transported goods and people for the LTTE from March 2007 to December 2007. (CB 220 at [38]). [LTTE Finding]

1. In his written submissions, the appellant contended there were three errors on the part of the Authority. The appellant's contended "first error", which was argued before the primary judge, was that the Authority's finding that S left Sri Lanka legally was legally unreasonable. It was submitted that "the Authority made findings that are arbitrary, not grounded in evidence, do not disclose an evident or intelligible justification, contrary to country information and affects the fairness of the decision‑making process": AS[38].
2. The appellant's contended "second error", which was not argued before the primary judge, is that the Authority's "LTTE Findings do not disclose an evident or intelligible justification, is contrary to country information and affects the fairness of the decision‑making process": AS[48]. This is the subject of Particular 11 in the amended notice of appeal. The "LTTE Findings" are defined as the Authority not being "satisfied that the Appellant was at risk on the basis of either his brother's membership of the LTTE or because [the appellant] transported goods and people for the LTTE from March 2007 to December 2007": AS[49].
3. The appellant's contended "third error", also not argued before the primary judge, was said to be the Authority's "[f]ailure to inquire about whether Brother S left Sri Lanka lawfully or unlawfully": AS[63].
4. Whilst the appeal is cast in terms of jurisdictional error on the part of the Authority any successful appeal would strictly lie in an error on the part of the Federal Circuit Court in failing to find jurisdictional error on the part of the Authority.
5. It is appropriate to address all the matters raised in the amended notice of appeal and written submissions, noting that the appellant requires leave to raise new grounds of review on appeal. To the extent required, that leave is granted.

1. The first error centres on the Authority's conclusion that S left Sri Lanka lawfully. The Authority stated at A[39]:

... S went to Turkey in December 2012. The applicant has not claimed that after the IDP camp he was ever questioned again about S, nor did he claim that S left Sri Lanka unlawfully or that he did so while under reporting conditions. I find that S left Sri Lanka lawfully. Given this, the applicant's own lack of profile and the evidence before me, I am not satisfied that there is a real chance of serious harm to the applicant by the Sri Lankan authorities on the basis that his brother, S, was a former LTTE member.

1. The appellant had provided evidence that S was resident in Turkey: A[39]. His representative had submitted that, on the appellant's return, the fact that S was no longer in Sri Lanka "may raise alarm bells": A[39]. In written submissions, the appellant submitted that, implicit in this submission, was the "presumption" that S left Sri Lanka unlawfully and that "[i]mpliedly, the [a]ppellant's risk of harm is heightened if S departed Sri Lanka unlawfully": AS[44].
2. In oral submissions at the hearing of this appeal, it was contended that it was not a part of the appellant's case before the Authority that his brother left Sri Lanka unlawfully. Counsel for the appellant submitted (T12.1-6):

[T]he appellant then built his case around his brother's departure, and there's really no evidence as to whether he knew or was aware of the circumstances that led to his brother departing, whether at the time of departure he was released, or whether he left lawfully or unlawfully. None of that was put forward by the appellant, but that was because that was not his case.

1. I do not consider it was implicit that the appellant was claiming before the Authority that S left Sri Lanka unlawfully.
2. The appellant observed that the Authority's reasoning at A[39] for concluding that S left Sri Lanka lawfully was expressed as being based on the appellant not claiming that: (a) he (the appellant) was ever questioned again about S after the IDP camp; (b) S left Sri Lanka unlawfully; or (c) S left Sri Lanka while under reporting conditions: AS[45].
3. The appellant submitted that these reasons did not constitute reasonable grounds for concluding that S left Sri Lanka lawfully. The appellant submitted that whether S left Sri Lanka lawfully is a question of fact which requires supporting evidence and that no such evidence was before the Authority: AS[47]. The appellant submitted that there was no evident, transparent and intelligible justification for finding that S had left Sri Lanka lawfully and that this comprised a "critical fact underpinning the decision".
4. The context for the Authority's finding was that the appellant claimed that his association with his brother was a matter which ultimately meant that protection was required. In this way, S's history and circumstances were obviously relevant.
5. Both before the delegate and before the Authority, the appellant contended that he (the appellant) had left Sri Lanka unlawfully and did not contend that S had left Sri Lanka unlawfully. There was material before the Authority which indicated that S had gone to the Netherlands, but that material did not suggest that the S's departure was unlawful: AB184 (delegate's decision).
6. The three matters referred to by the Authority in reaching its conclusion that S left lawfully were not matters which it was irrational or illogical to consider in the process of making findings about S's circumstances for the purposes of the review: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131] - [135]. They were contextual matters of fact which were relevant and open on the material. The appellant contended that he had left Sri Lanka unlawfully, but not that his brother had. The appellant did not contend that his brother had been subjected to reporting conditions following his release. The appellant was not questioned ever again about S after the IDP camp. It was open for the Authority, having regard to those matters, to view the material before the Authority as not suggesting that S left unlawfully and concluding that he left lawfully.
7. Contrary to the appellant's submission, in the circumstances, it was not necessary that there be direct evidence positively establishing that S left Sri Lanka lawfully before the Authority made a finding to that effect. The following observations are relevant in that regard:

(a) First, the nature of the material that can be relied upon in reaching an administrative decision is not as strict as it is in a judicial proceeding, the decision-maker usually being entitled to take into account material which would not constitute "evidence" in a judicial context - see: Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; 298 FCR 277 at [37] (Markovic, Meagher and Kennett JJ), citing L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [33] and [34] (Basten JA, with whom McColl and Whealy JJA agreed).

(b) Secondly, in administrative decision-making, inferences may be drawn from an absence of evidence: Masi-Haini at [37]; L & B Linings at [34]. In this regard, the inferences which may legitimately be drawn may be affected by the statutory context, particularly where that casts the onus of raising claims or evidence on the person affected - see, for example, s 5AAA of the Act set out at [58] below.

(c) Thirdly, to the extent that the appellant's argument was based on the "no evidence" (or other material) ground, this has traditionally meant "not a skerrick of evidence": Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [17].

(d) Fourthly, the existence of a fact may be inferred from other facts or circumstances - see, in a judicial context: Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 at 306 (Jordan CJ); Henderson v State of Queensland [2014] HCA 52; 255 CLR 1 at [89] (Gageler J). This is equally true in the administrative decision-making context as it is in the judicial context.

1. Whilst others may have assessed the material differently, it was open for the Authority to reach the conclusion it did. This Court cannot review the merits of the Authority's decision. The contended first error is not made out.

1. The appellant disputes the Authority's finding that he was not at risk on the basis of his brother's membership with the LTTE or his own work transporting goods for the LTTE.
2. The appellant submitted that the Authority's LTTE Findings were not supported, and indeed were contradicted, by the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012: AS[49].
3. The appellant referred in this respect to various parts of the Guidelines, including the following passage (pages 26-7; footnotes omitted):

... Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

...

1. 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;

...

1. Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

...

1. The Authority considered the Guidelines, including at A[38]. Having referred to them, it stated that it was nevertheless "not satisfied the applicant is at risk on the basis either of his brother's membership of the LTTE or because he transported goods and people for the LTTE from March 2007 to December 2007", for the following reasons given at [39] and [40]:
   1. I am not otherwise satisfied that at the time he left Sri Lanka, the applicant was a person of interest to the authorities on the basis of his actual or imputed political opinion. The applicant is from the Northern Province of Sri Lanka and lived for the majority of his life in [Location Y], an area formerly held by the LTTE. At the height of its influence, the LTTE controlled and administered 76 percent of the Northern and Eastern Provinces of Sri Lanka and as noted above, as a consequence, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. The country information before me does not, however, support a finding that all Tamils continue to be imputed with LTTE affiliation or membership. The 2012 Guidelines issued by the United Nations High Commissioner for Refugees (UNHCR), which are still the UNHCR's most recent assessment of the situation for refugees in Sri Lanka, state that even those Tamils who lived within LTTE-controlled areas and had contact with that organisation and its civilian administration in their daily lives are not, without more, in need of protection. There may be a need for protection if a person identifies as having certain links to the LTTE, including for example, certain family links and being involved in the supply and transport of goods for the LTTE. However, for the following reasons I am not satisfied the applicant is at risk on the basis either of his brother's membership of the LTTE or because he transported goods and people for the LTTE from March 2007 to December 2007.
   2. Firstly, I have accepted that his brother was a member of the LTTE and underwent rehabilitation, and that while in the IDP camp the applicant was questioned about him. He has also provided evidence that S now lives in Turkey and his representative has submitted that on return, the fact that S is no longer in the country may raise alarm bells. As noted above, as a result of the intensive screening programs that were conducted in IDP camps, the details of all IDP's including family members, are on the Government's intelligence system and available to the authorities. It is therefore likely that the fact that the applicant has a brother who was in the LTTE and underwent rehabilitation will come to light on his return. I note the CAT report refers to information that individuals suspected of having a link with the LTTE have been abducted and subjected to torture. The CAT report does not otherwise specify when such occurrences happened or the circumstances and while I accept there have been such reports, I am not satisfied that the risk of harm to the applicant on this basis is more than remote. S went to Turkey in December 2012. The applicant has not claimed that after the IDP camp he was ever questioned again about S, nor did he claim that S left Sri Lanka unlawfully or that he did so while under reporting conditions. I find that S left Sri Lanka lawfully. Given this, the applicant's own lack of profile and the evidence before me, I am not satisfied that there is a real chance of serious harm to the applicant by the Sri Lankan authorities on the basis that his brother, S, was a former LTTE member.
   3. Secondly, in relation to his work for the LTTE's transport unit in 2007, there is no evidence the authorities were, either before or after he left Sri Lanka, aware of that work and he has never come to the attention of the authorities because of it. I consider his claim that there is always a risk of other Tamil people dobbing him in for that work speculative. Accordingly, I am not satisfied the applicant is at risk on the basis of the transport work he performed for the LTTE in 2007. Taking all of the above into consideration, I am not satisfied that at the time he left Sri Lanka, the applicant was of any interest to the authorities on the basis of his actual or imputed links to the LTTE.
2. It is plain from the terms of the Guidelines that their application depends on the particular facts. As set out above, the Guidelines include (emphasis added): "links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case". As to the "more elaborate links" identified in [4] and [6], these are identified as ones which "may" give rise to the need for protection.
3. The Authority accepted that S was a member of the LTTE and underwent rehabilitation. The Authority also found that it was likely that the fact the appellant had a brother in the LTTE would come to light upon his return. Acknowledging that there was a risk, the Authority concluded that it was only remote. It referred in this regard to: S having gone to Turkey in December 2012; the appellant not claiming that he was ever questioned again about S after the IDP camp; the appellant not claiming that S left Sri Lanka unlawfully or that he did so while under reporting conditions; and the appellant's "own lack of profile". This reasoning rationally supports the conclusion that the risk was "remote", even if a different conclusion was open on the material. It was in this context that the Authority concluded that S left lawfully.
4. In oral submissions, it was contended that none of those matters erased the links between the appellant and his brother. It may be accepted that the matters referred to by the Authority do not erase those links, but they are matters which rationally inform an assessment of whether the links are such that the appellant would be of interest to Sri Lankan authorities or such that he might suffer harm as a result.
5. In relation to the appellant's work for the LTTE's transport unit in 2007, the Authority reasoned that (a) there was no evidence that the authorities were aware of that work, either before or after he left Sri Lanka; (b) he has never come to the attention of the authorities because of it; and (c) the claim that there was a risk of other Tamil people dobbing him in for that work was "speculative".
6. Again, this reasoning is neither (legally) unreasonable nor irrational. On the material which had been put forward, it was not irrational to have described the appellant's claim as "speculative". The work events had occurred in 2007. There was little in the way of material which raised the possibility of "Tamil people dobbing him in", particularly in circumstances where the material led the Authority to the conclusion that the appellant had "never come to the attention of the authorities because of" that work.
7. The appellant referred to the Guidelines at page 28, where it states:

Former "rehabilitees" reportedly face problems reintegrating upon release. Many are visited by military and intelligence agents, or are required to report regularly to local military "Civil Affairs Officers", local police and military camps. Many are believed to have been put under pressure to act as informants. Should the individual fail to report to the military authorities on a regular basis, family members are directly questioned by the military on their whereabouts. Additionally, relatives of former LTTE fighters who did not surrender continue to face interrogation by the authorities. The issuance of ad hoc "release certificates" by these authorities, including with expiration dates, reportedly creates confusion as to the status of those who are released. "Rehabilitees" report that they self-limit their movements within and outside their immediate community, which also has a negative impact on certain livelihood opportunities.

1. The Authority's conclusion was not one about "rehabilitees" as such, but about the claim which the appellant had made more generally. In any event, given the time of the relevant events and the lack of cogent material supporting a real risk of being informed on, the Authority cannot be said to have reached an irrational or unsupported conclusion. The Authority considered the likely circumstances of former LTTE supporters and their family and considered the appellant's circumstances. The Authority's conclusions were not contrary to country information and had an intelligible basis.
2. The Authority is not shown to have erred in the way contended by the third error.

1. The appellant submitted that the Authority's failure to inquire about whether S left Sri Lanka lawfully was legally unreasonable.
2. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 98 ALJR 196 at [25], the High Court stated in relation to a case which arose under s 501(1) of the Act (footnotes omitted):

The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

1. The question whether a failure to inquire is legally unreasonable must be assessed in the context of the statutory regime in which the issue arises. Here, the statutory regime was provided by the Act and by Part 7AA of the Act in particular. The review under s 473CC is conducted, subject to that Part, on the material provided under s 473CB (somewhat loosely described - having regard to various powers and discretions in Part 7AA - in the title to Subdivision B as "on the papers"): s 473DB.
2. The Authority has a discretion to obtain and consider "new information" according to carefully defined limits: Subdivision C. For example, the Authority may get any documents or information that were not before the Minister when the Minister made the decision under s 65 that the Authority considers may be relevant: s 473DC(1). Section 473DC(2), however, provides that the Authority "does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances".
3. The Authority's discretion to get new information under s 473DC is conferred on the implied condition that it must be exercised reasonably - see, for example: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ); Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [86] (Gordon J); at [97] (Edelman J).
4. It is difficult to see a residual operation for the principle expressed in Ismail at [25] to the present context which could have any practical content different from the principle that the power under s 473DC must be exercised reasonably. It is not necessary to resolve this question. Whichever way the appellant's "third error" is cast - as an unreasonable failure to get new information or a failure to inquire - jurisdictional error has not been established.
5. It is relevant also to note, as a matter of statutory context, that "Division 3 - Conduct of Review" (together with ss 473GA and 473GB) is taken to be an exhaustive statement of the natural justice hearing rule: s 473DA.
6. Finally, it is also relevant to note s 5AAA of the Act, which includes the following:

5AAA Non-citizen's responsibility in relation to protection claims

(1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

(3) The purposes of this Act include:

(a) the purposes of a regulation or other instrument under this Act; and

(b) the purposes of any administrative process that occurs in relation to:

(i) this Act; or

(ii) a regulation or instrument under this Act.

(4) To remove doubt, the Minister does not have any responsibility or obligation to:

(a) specify, or assist in specifying, any particulars of the non-citizen's claim; or

(b) establish, or assist in establishing, the claim.

1. The appellant's brother's movements were discussed with the appellant and considered by the delegate. The appellant provided information concerning his brother's connections, history and location which related to his claim: A[37] and [39].
2. The appellant did not claim that S had left Sri Lanka unlawfully. Contrary to the submission advanced at AS[44], no such claim was implicit. It would have been open to conclude that the appellant did not know one way or the other whether his brother had departed lawfully or not.
3. In the statutory context in which the Authority's decision was made, it was not legally unreasonable not to use the powers in Part 7AA to inquire whether S left Sri Lanka unlawfully and nor was the failure to inquire one which otherwise gave rise to a jurisdictional error.
4. The Authority is not shown to have erred in the way contended by the "third error".

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.