First ground
15 The appellant contrasts the wide variety of information to which the delegate had regard, with the fact the Authority had regard to three sources of information, and in particular relied on the Department of Foreign Affairs and Trade country report in relation to Sri Lanka of January 2017. He contends the absence in the Authority's reasons of any references to country information other than three sources should lead to a finding that the Authority did not consider any other sources of country information, including the wide range of material to which the delegate referred. In particular, the appellant pointed to information before the delegate in reports from Human Rights Watch, Tamils Against Genocide and Freedom From Torture that there were calls made to halt the deportation of all failed Sri Lankan asylum seekers to Sri Lanka, and the continuing torture of returnees.
16 The appellant also referred to the terms of s 473DB(1), which the appellant submitted "compelled" the Authority to consider all the country information before it:
473DB Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
17 The Minister contends that while s 473DB(1) of the Migration Act requires the Authority to "review" a decision referred to it by "considering the review material", that does not mean the Authority is required to "make specific reference to every item of the review material in its reasons for decision". He also contends that the fact the Authority did not refer to the identified country information suggests that the Authority did not consider the information relevant to its decision in particular given the more recent 2017 DFAT report on Sri Lanka.
18 In resolving the first ground I note the following matters:
(a) The terms of s 473DB(1) require the Authority to consider the "review material" provided to it under s 473CB by the Secretary. By ss 473CB(1)(b) and (c) that will include country information either provided to the delegate by a visa applicant (s 473CB(1)(b)) or country information on which the delegate relied (s 473CB(1)(c)). In relation to s 473CB(1)(c), plainly any material to which the delegate referred in her or his decision is likely to be (at the time at which the s 473CB obligation is to be performed) material which is relevant to the Authority's review. How the material is "given" is a different matter, and it may be that in relation to country information there are a number of ways in which the applicable country information before the delegate can be "given" to the Authority.
(b) There is no challenge to the Authority's exercise of discretion under s 473DD not to receive a range of new information placed before it, including what was described by the Authority as "document titled "Information Report: Sri Lanka October 2016", prepared by Nalliah Suriyakumaran, Fr Pan Jordan OP, A. Ratnakanthan, Chris Slee and Michael Cooke, dated December 2016".
(c) There is no challenge to the Authority's exercise of discretion under s 473DD to receive a document entitled "DFAT Country Information Report - Sri Lanka", 24 January 2017, being an updated report by DFAT on the situation in Sri Lanka. I further note the Authority was not obliged to give the appellant notice that it would consider this kind of new information: see s 473DE(3)(a).
(d) Apart from filing the documents to which the Authority referred in its reasons at [4], the appellant made no additional submissions to the Authority. In particular he made no additional submissions about the existing country information that had been before the delegate. The evidence shows he did contact the Authority a number of times, explaining his difficulties in getting documents translated, his difficulties in representing himself, and his general circumstances.
(e) The January 2017 DFAT report described DFAT's opinion of the situation in Sri Lanka at a time which was around six months prior to the Authority's decision.
(f) The focus of the appellant's submissions on the appeal appeared to be on the Authority's conclusion at [50] that:
… the risk of torture or mistreatment for the majority of returnees is low and continues to reduce.
(g) This is the finding the appellant submits might have been different had the Authority considered the earlier material from 2012 from Human Rights Watch, Tamils Against Genocide and Freedom From Torture, which the delegate had considered.
19 Like other merits review bodies, the function of the Authority is to make the correct or preferable decision: Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425 (Brennan J). In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] French CJ described the review function of the then Refugee Review Tribunal and Migration Review Tribunal. This description applies equally to the function of the Administrative Appeals Tribunal and, subject to what I say at [20], also to the Authority:
The word "review" "has no settled pre-determined meaning; it takes its meaning from the context in which it appears." As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.
(footnotes omitted)
20 The way in which the Authority must discharge that function is conditioned by the terms of Pt 7AA, and those provisions affect the unqualified applicability of the last sentence of the extract from Li. Nevertheless, the function remains a "review" function (see s 473CC(1)) and the powers of the Authority include a power to recommend that the delegate's decision be changed (see s 473CC(2)(b)). This is the approach to the Authority's function taken by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [17].
21 In performing a review function of this kind, the usual principle is that the decision-maker should consider current information or material most likely to give the decision-maker an indication of what the situation is likely to be in the country to which a visa applicant may be forced to return: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38] and [45]. Consideration of up-to-date material is a core aspect of the review function where the task is to determine whether a person has a well-founded fear of persecution on return (in the foreseeable future) to a country, or faces a real risk of significant harm (in the foreseeable future) in that country. The task is predictive, and while each case will turn on its facts, in general terms it can be said that a decision-maker should, in order to perform her or his task, base that prediction on the most recent and reasonably available information about the situation in a particular country.
22 In the case of the Authority, the constraints imposed by s 473DB(1) must be noted. However, so must the power in s 473DC(1) to "get" new information. What occurred in this case is a good example. As I have noted above, the Authority clearly became aware of a newly updated DFAT country report, and considered the fact that it was the most up-to-date information about the situation in Sri Lanka to be "exceptional circumstances" for the purposes of s 473DD(a). That was, with respect, a plainly correct approach, given the Authority's function.
23 In undertaking that task, and noting what I have observed in [18(a)] above, an obligation to "consider" review material does not necessarily involve the Authority referring in its reasons "to every piece of evidence and every contention made by an applicant": see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] and the authorities there cited. Carrascalao concerned a visa cancellation decision but in my opinion, and taking into account the authorities to which the Full Court refers at [45], the same principles apply. See also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47].
24 At [3] of its reasons the Authority stated that it had regard to the material referred by the Secretary under s 473CB. While a general statement such as this is not determinative, it is also not to be set at nought. For a supervising court to find, against such a statement, that certain materials which should have been considered have not been requires a sufficient probative basis in the remainder of the reasons, and in other evidence before the supervising court.
25 At [13]-[35] of its reasons, and in some detail, the Authority set out the appellant's claims, his account of what had happened to him in Sri Lanka, and what he feared would happen to him, as well as an account of his circumstances since he had arrived in Australia. The Authority then expressed its conclusion at [36]-[51] about why, despite its acceptance of much of his narrative of his past treatment, the Authority was satisfied there had been a change in the situation in Sri Lanka, and that in any event, insofar as there remained a real chance of persecution or serious harm, the appellant was not a person who fell into any of the categories of people to whom those risks applied. From [53]-[61], the Authority considered the complementary protection criteria, relying on the 2017 DFAT report.
26 Aside from the matter to which I have referred in [18(f)] above, the appellant's submissions did not point to any particular issue relevant to the appellant's claims or circumstances which was raised by the country information and which he contended had not been considered.
27 This is a situation where, in my opinion, there is no probative basis on which to doubt the Authority's statement at [3] of its reasons. The extent to which it was necessary for the Authority to specifically address broader country information in its reasons is always dependent on its findings of fact. In this case, in a detailed and careful way, the Authority had made factual findings about why the appellant's past activities would not bring him to the attention of the Sri Lankan authorities, and why he would not face any challenges on retuning to Sri Lanka which were not challenges shared with other Tamil asylum seekers. It was on that basis the Authority came to consider the country information and there is no error, let alone a jurisdictional one, in its focus on the most recent DFAT report. Indeed, the fact it sought out and relied on the most recent report demonstrates a proper approach to its review function, for the reasons set out in MZYTS.
28 In the absence of anything more specific being highlighted by the appellant to the Authority, and in the absence of any evidence before the Federal Circuit Court and this Court on appeal about the contents of country information to which the Authority did not expressly refer, this ground must be rejected.