DJQ16 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs

FIRST ASSERTED FAILURE 4 As to the first claim, the appellant had stated in his statutory declaration of 26 August 2013: [12] On a further ten to twelve times since (2009-2012) I was stopped and questioned about my brother's where-abouts. The last time I was stopped by the CID occurred just before I fled to Australia. Around the beginning of July 2012 whilst on my way to work, two people on a motorbike stopped and grabbed me and put me on the motorbike with them and took me to the same bush area where I was initially taken. This time there were ten-armed officials too. I was beaten up and again questioned about my brother [T]. Again I told them that I have no contact with him on which they retaliated by pointing a gun against my head and said that I should tell the truth. [13] They then told me that they suspected that once grown up I would also support the LTTE. I was warned and instructed to get them updated information about my bother [sic] otherwise I would be killed. 5 In his protection visa interview (PV Interview) held on 8 July 2016, the appellant stated: Then, I don't know why in Sri Lanka, the CIDs still targeting us, threatening us, and even they took me to the jungle. I was beaten and I was threatened at the gunpoint that I will be shot dead by the CID. I don't know what his involvement was, but, I don't know why the CIDs targeting me and my family, regarding my brother that I don't know really what extent his involvement is. But I was threatened and targeted by the CID. … Even I can't understand why CIDs doing like that. I was beaten by the CID and I was threatened by the CID. I asked him why you are doing like this to me. They said give all the details of your brother, where he is, when he will come back, and what is he doing there. If you can't do it, keep like that, this overseas, I will shot [sic] and kill you. I don't know why they are threatening me like that and why they are doing like that. Even I can't understand what's going on. … Actually, I can't live in Sri Lanka, that's my birth place. Actually, I love to live in Sri Lanka but I have no freedom. I can't keep there. I was threatened at gunpoint that if you escape from here and come back, if I see you again, I will shot [sic] and kill you. So there is no guarantee for my life in Sri Lanka. That's why I came here. Otherwise I would have lived in Sri Lanka. My life is not guaranteed in Sri Lanka, I have problems. I can't live peacefully. That's why I came here. 6 The first and second passages above, read in the context of the questions which had been asked, appear to have been intended to refer to the incident in July 2012 when the appellant was threatened. The second passage expressly refers to the demand to provide details about the appellant's brother, which was also referred to in the appellant's statutory declaration in connection with the July 2012 incident. 7 It is not clear whether the third passage set out above relates to the July 2012 incident or some other incident. However, the fact that the appellant stated that the threat was why he came to Australia lends the passage to the interpretation that the appellant was again talking about the incident in July 2012. 8 Inexplicably, neither party's written submissions to this Court drew attention to the fact that the Authority had expressly referred to the appellant's claim that his life had been threatened during the incident in July 2012. Part of the explanation so far as the Minister's submissions were concerned might lie in the fact that, omitting formal parts, they were less than two pages long and did not descend to meaningful engagement with the appellant's first set of written submissions. The written submissions for both parties on the appeal proceeded on the incorrect basis that the Authority had not referred to the appellant's life being threatened. 9 Nor did either party apparently draw to the attention of the FCC that the Authority had expressly referred to the appellant's claim that his life had been threatened during the incident in July 2012. The Authority's reference to the appellant's claim was in the penultimate sentence of A[8]: He says he was stopped a further 10 to 12 times by the CID between 2009 and 2012 and asked about his oldest brother's whereabouts. The last time he was stopped was around the beginning of July 2012 when two men on a motor bike grabbed him and took him to the same bush area as in 2009. There were a further ten armed CID officers at the bush area and he was beaten and questioned about his oldest brother. He told them he was not in contact with his brother and they pointed a gun at his head and told him to tell the truth. They then told him that they suspected that once grown up he would also support the LTTE and was instructed to get updated contact information about his oldest brother or he would be killed. After this incident he decided to flee Sri Lanka. 10 When asked about the reference to the threat made to the appellant that the appellant would be killed, counsel for the appellant submitted that there were two incidents during which the appellant's life was threatened. After making this submission, instructions were sought and received that there were two incidents occurring within about six months of each other. As discussed below, this was not a submission that appears to have been made to the FCC, where the appellant was competently represented. The delegate only referred to one incident. The material before the Authority did not contain any clear claim of there being two separate threats which had been made to the appellant's life. Rather, the material indicated that there were two "serious incidents", one in 2009 and one in 2012. The material indicated that the appellant's life was threatened in the second incident. The Authority referred to and dealt with these two incidents at A[3], A[7], A[8], A[10], A[13] and A[30]. 11 The Authority described the appellant's evidence as "generally consistent on the key points" but then added the following qualification at A[10]: … However, I am satisfied there is an element of embellishment or exaggeration in some of his evidence. In particular, I consider it implausible that the CID would tell a 19 year old that they suspect he will be a supporter of the LTTE when he is 'grown up' or that ten other CID officers would be waiting in the bush area in 2012 to question the applicant about his brother's contact details… 12 The Authority continued at A[10] to indicate what aspects of the claims it accepted notwithstanding that the appellant had exaggerated some elements of his claims. The Authority recorded that it accepted that, in July 2012, the appellant "was detained, beaten and questioned by the CID about the whereabouts and contact details of his oldest brother". 13 The Authority expressly stated that the incident in July 2012 was serious at A[13] (emphasis added): Given that the applicant was stopped and questioned by the CID on up to 12 occasions, including two serious incidents, over a period of three or so years from 2009 to 2012, I accept as plausible that the CID would make some enquiries about his own whereabouts between July 2012 and August 2013… 14 The Authority also made clear at A[30] that the appellant had experienced physical harm "including being beaten and threatened on two of those occasions". 15 The Authority considered the appellant's claim that his life was threatened in July 2012: A[8]. The Authority accepted that the incident occurred in July 2012, but considered aspects of the account given by the appellant of this incident were exaggerated. The Authority accepted that, on that occasion, "he was detained, beaten and questioned by the CID about the whereabouts and contact details of his oldest brother": A[10]. 16 It was open to the Tribunal to understand from the material before it that there was only one threat to the appellant's life. There was only one such threat mentioned in the statutory declaration and the evidence in the PV Interview did not make clear that there were two threats and, indeed, rather tends to suggest there was only one. It was not put to the FCC that there were two threats to the appellant's life. 17 The appellant's claim, as articulated in his statutory declaration and as put in his PV Interview, was that he was targeted because of his brother's association or perceived association with the LTTE. The Authority considered the appellant's claim to fear harm because of his association with his brother, including that part of it which compromised him being directly threatened.

SECOND ASSERTED FAILURE 18 As to the second matter, the appellant's statutory declaration of 26 August 2013 included: I fled from Sri Lanka as I fear for my life should I have remained in the Country. Before I fled from Sri Lanka the CID was after me due to their suspicion that my brother [T] had links and supported the LTTE in 2008. He had a grocery shop in the former LTTE controlled area called [V], [VA] district, Eastern Province. The LTTE used to buy groceries from my brother's shop and for this reason he was suspected of being a supporter of the LTTE. 19 In the PV Interview, the appellant made a number of references to the LTTE buying goods from his older brother's shop and to his brother providing food or food parcels to the LTTE. Examples of this evidence include: Actually, my elder brother [T] had a shop and LTTE comes and buys things from his shop. And also we provide food to LTTE… I think because LTTE comes and buys things from my brother's shop, he has all the things in his shop. So most of the time LTTE comes and buy things from his shop. Also we provide food parcels to LTTE. I think that's the reason… Actually, our village [V] was under the control of LTTE and LTTE-controlled area. And somebody has informed CID that my brother supplied things to LTTE and also provided food to LTTE. So somebody informed this to CID and because of that we are having problems. This is what my mother told me… Actually, my brother had the shop and LTTE always buy things from his shop. He also provided food to LTTE. Because of that he was shot by CID and he escaped from it… 20 It was submitted that the appellant meant that the provision of food was a "voluntary" act or that it was done without the older brother requesting or requiring payment. It is not clear precisely what the appellant intended to convey by his evidence. One interpretation is simply that, in addition to the LTTE coming to buy goods, food would also be delivered to the LTTE without the LTTE needing to come to the shop. 21 The Authority stated at A[5]: The applicant states that his oldest brother owned a grocery shop in [VA] from 2006 or 2007 to 2008. The area was controlled by the LTTE at the time and LTTE members bought groceries at the shop. As a result, the Sri Lankan authorities suspected his oldest brother was a supporter of the LTTE. His oldest brother was targeted by the CID, who wanted to kill him, and at the end of 2008 his oldest brother fled to India and remains there today. 22 The Authority noted at A[10] that as far as the appellant knew "his oldest brother's only connection to the LTTE is the LTTE buying groceries from his brother's shop": A[10]. The Authority accepted at A[10] that the appellant's "oldest brother ran a grocery shop in a LTTE controlled area and the LTTE bought groceries from the shop": A[10]. 23 The Authority did not need to make express reference to providing food parcels to the LTTE. The Authority's use of the word "groceries" is not to be understood as excluding food. It is to be understood as a reference to the various things the appellant's older brother sold in his grocery shop, including food. I am not satisfied that the Authority overlooked the evidence that the appellant's older brother provided groceries which included food. 24 A claim that the appellant's brother provided food parcels to the LTTE for free was not made. The evidence did not require, or particularly suggest, a conclusion that the appellant's brother sent food parcels for free, or without any request having been made. 25 The Authority considered the appellant's claims to fear harm because of his brother's dealings with the LTTE through his shop. The Authority accepted that the brother's dealings with the LTTE were sufficient for him to have been targeted by the CID and for that in turn to have excited interest in the appellant on the part of the CID. The Tribunal did not need to refer to all aspects of the evidence which led it to accept the material part of the appellant's claim. The Authority considered the claim as it was put. 26 At the hearing of the appeal, counsel for the appellant advanced a case which was both inconsistent with the notice of appeal and new. Counsel submitted that the delegate in the PV Interview ought to have asked what things other than food were purchased or obtained from the brother's shop and that this failure to inquire meant that the Authority did not have material before it which it should have had. In a 17 page written submission filed without leave shortly before 9.00am on the morning of the appeal, said to supplement rather than replace the 13 pages of submissions which had earlier been filed by the appellant's solicitor, counsel submitted: 11. Nor did he or does he know why he was threatened at gun point in the first place not knowing the extent of his brothers involvement which on any view is more than supplying groceries both on current evidence and potential evidence, again the part of the evidence that he supplied 'things' was overlooked. It could have easily been asked of the appellant 'what things' were provided other than food since they always come to the shop' and he could have answered as he has been studying within that shop on a daily or weekly basis. That question was not asked, and the fact that the elder brother supplied 'things' along with food was completed overlooked by both respondents. This part of the claim should have been further investigated as it could have led to establishing more about the brother's participation and involvement with LTTE members. The only part it may seem deliberately dressed down in the respondent's decision is the extent of the brother's involvement is in giving 'groceries.' That is not true. The part of the claim that the appellant made that the brother supplied things … should have been further looked into and was not. 12. The appellant's lack of knowledge as to the extent of his brother's involvement should not have been decided against him. It is not that he does know and will not tell, it is simply that he does not understand why he is being targeted and therefore why he is at risk and what his brother is actually involved in so far as LTTE affairs. He was young and he was studying and that is a fair assessment. To decide that his fears are not well grounded because all the brother did was sell groceries to LTTE troops is not the full extent of the truth and therefore this cannot be a fair assessment. 27 During oral argument, counsel submitted that the appellant ought to have been asked what things were obtained from the shop and that the appellant would have answered to the best of his knowledge. Counsel submitted that the fact that the appellant was studying "explains the little knowledge he has of what's going on in the shop". It was not submitted that the appellant would have identified the supply of some specific thing by the older brother to the LTTE. 28 These submissions were inconsistent with the case run in the FCC and with the notice of appeal, which both proceeded on the basis that the Authority overlooked a claim that "food parcels" were supplied in addition to the sale of goods: J[51]. The submissions concerning an alleged failure by the delegate to inquire do not grapple with the fact that the application to the FCC was for judicial review of the Authority's decision, not the delegate's decision. No application was made to amend the notice of appeal. 29 Counsel also submitted that, in addition to the delegate failing to inquire, the Authority should have made inquiries about what things were obtained from the shop. These arguments were also not raised in the notice of appeal. There was no application to amend. These arguments were not raised before the FCC. 30 No argument was advanced at the hearing of the appeal that the Authority erred in failing to consider or exercise any of the powers in Part 7AA, such as those in s 473DC of the Migration Act 1958 (Cth). Nevertheless, I have considered the point and do not consider that there was any unreasonable failure on the part of the Authority to consider exercising the power to obtain new information, as to which see: DPI17 v Minister for Home Affairs [2019] FCAFC 43.

THIRD ASSERTED FAILURE 31 As to the third matter, the appellant relied on the fact that the Authority did not mention in its reasons that the appellant's brother had been shot in support of his submission that the Authority failed to consider an integer of his claim. 32 In his statutory declaration of 26 August 2013 the appellant stated: As a result of the targeting by the CID [T] escaped to India by the end of 2008 as the CID wanted to kill him. 33 The appellant did not mention that his older brother had been shot in his statutory declaration. 34 In his PV Interview, the appellant gave the following evidence (errors in original): [Immigration Officer]: Sure. You see, why we are starting from your brother's situation because, from what you have explained in your statement of claims and also what you mentioned now, is that all the problem you faced and even your youngest brother that now is living in Sri Lanka and your family, they are all suffering because of your brother's situation. So we need to be clear about his situation first, then we can then make sense that why you were in trouble or why your family are in trouble. Do you understand? [Applicant through interpreter]: Actually, my brother had the shop and LTTE always buy things from his shop. He also provided food to LTTE. Because of that he was shot by CID and he escaped from it. When I was studying, I stayed in my brother's shop. So because of that, CIDs always have seen me and asking me to give information about my brother and his involvement. Because of that I am having problems. 35 The Authority's decision must be read as a whole and in the context of the material before the Authority and the way in which the appellant had put his claims to the delegate. There are three matters of context which should be mentioned. 36 First, the Authority was dealing with the claim made by the appellant and not directly with any claim made by his brother. A decision-maker might reasonably focus more attention in his or her reasons to the events directly concerning the appellant. That is not to suggest that what had occurred to the appellant's brother was irrelevant or immaterial to the appellant's circumstances and fears. The reasons for the CID's interest in the appellant's brother were clearly relevant as that formed the basis of the CID's interest in the appellant. The extent of the CID's interest in the appellant's oldest brother would be relevant to the extent of its interest in the appellant and whether that interest was likely to be continuing. 37 Secondly, as will be mentioned further below, the Authority essentially accepted the appellant's claims about past events. The Authority, however, concluded that there was no longer any risk. This was based on a detailed review of country information: A[18] to A[34]. Reasons for an administrative decision must be read practically and in a common-sense way: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. One purpose of reasons is to inform persons affected why a decision was made. A decision-maker might reasonably address in more detail the reasons why the decision went against the appellant, than the reasons why certain aspects of the person's case were accepted. 38 Thirdly, the reasons must be examined in light of the way in which the claims were put forward, the centrality of the matter to the issues and the prominence the matter assumed. The claim about the brother being shot had not been mentioned in the statutory declaration or at any time before the PV Interview when it was mentioned once. 39 The Authority accepted that the appellant's oldest brother was targeted by the CID and subsequently fled to India at the end of 2008: A[10]. The Authority accepted that the reason why the appellant's oldest brother was targeted by the CID was his association or perceived association with the LTTE. The Authority accepted that the appellant was targeted by reason of his connection to his older brother, including in two serious incidents in 2009 and 2012: A[13]. The lack of reference to all aspects of the material and evidence which supported the appellant's claims must be examined in that light. 40 In ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at [13], Bell, Keane and Gordon JJ observed that "[t]here was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it". The fact that evidence has not been referred to does not inevitably lead to a conclusion that the evidence was not considered. A reference to evidence or a finding in respect of it might be explained, for example, by it being irrelevant, or immaterial or subsumed in a matter of greater generality. It might also be explained by it not being material to the line of reasoning employed. The Full Court Minister for Home Affairs v Buadromo (2018) 362 ALR 48 stated at [48]: Generally, an obligation to give reasons does not require a "line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal". The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65] [67] per McHugh J). 41 I am not satisfied that the Authority's failure to mention the evidence given in the PV Interview that the appellant's brother was shot establishes a failure to consider that evidence or the appellant's claim as put. It is clear from the Authority's reasons that it read the PV Interview. The Authority's failure to mention the appellant's evidence that his oldest brother was shot is perhaps explained by its acceptance that the brother had been of real and significant interest to the CID. The better understanding of the Authority's reasons is that it accepted the appellant's claims about what had happened to his brother. Whilst it would have been preferable to have referred to the appellant's evidence about his oldest brother being shot, the Authority did not err in a manner going to jurisdiction by failing to make an express reference to that evidence or to record an express finding about that. 42 The material reason why the delegate's decision was affirmed did not lie in any serious rejection of the appellant's claims as to what had occurred in the past, but rather in the fact that the Authority took the view that the appellant was not at risk of harm by the time of its decision. The Authority undertook a detailed review of the country information to assess whether the appellant would still be at risk: A[17]-A[31] and A[34]-A[37]. The Authority stated at A[30]: I accept that the applicant and his family lived in LTTE controlled areas for a time during the war; the Sri Lanka authorities were interested in his oldest brother who ran a grocery shop in [VA] from approximately 2006 to 2008 and members of the LTTE bought groceries in the shop; he was questioned a number of times between 2009 and 2012 about his oldest brother's whereabouts and contact details, including being beaten and threatened on two of those occasions, once in 2009 and again in July 2012; and the CID asked after his whereabouts after he left Sri Lanka. Having regard to the UNHCR guidelines, I am not satisfied that the applicant is at risk of harm for a number of reasons. First, residing in a LTTE controlled area does not give rise to a need for protection. Secondly, although he was stopped and questioned by the CID on a number of occasions from 2009 to 2012, and seriously mistreated on two of those occasions, the enquiries by the CID were always in relation to his oldest brother's whereabouts and not, on my findings, based on any suspicion concerning the applicant himself. Thirdly, the CID has not made enquiries with his family about his own whereabouts since 2013. Fourthly, on my findings, the CID has not made any enquiries with his family about his oldest brother's whereabouts since the applicant departed Sri Lanka in July 2012. I accept that the Sri Lanka authorities' interest in the applicant's oldest brother, and therefore the applicant, diminished after the applicant left Sri Lanka and, over the last three to four years, together with the improvements in Sri Lanka since 2015 with the change of government, has now disappeared. Given the above factors, I consider any risk of harm to the applicant from the authorities based on his profile, including as a Tamil male from the north, to be remote. 43 In oral submissions counsel for the appellant submitted that the country information which the Authority took into account was "not evidence", that it was "unverified" and that the Authority was not entitled to take it into account. No authority was cited for the proposition that the Authority was not entitled to take country information into account. 44 The statutory scheme requires the Secretary of the Department to provide "review material" to the Authority, which must in turn conduct a review: s 473CB and 473CC of the Act. The Authority can plainly have regard to country information provided to it as part of the "review material". The appellant had, through his legal representatives, submitted country information to the delegate in support of his application. 45 Counsel for the appellant also submitted that it was not open to the Authority to conclude that there was no longer any risk by reason of the passage of time and having regard to the country information which had been reviewed. Counsel submitted it was not open because it was not the fairest conclusion. That submission was clarified in the following way: Not the fairest conclusion. Insufficient information, de-selecting relevant material, selecting irrelevant material, aka groceries, and doing what it did to downplay the actual level of risk that the appellant has and still has if he were to return… 46 It was also submitted that the Authority's conclusion was not open because it was incorrect. I understood that submission to be based on the earlier submission that the Authority was not entitled to take the country information into account. 47 As the primary judge concluded, the Authority's reasoning at A[30], which followed its detailed analysis of country information, was open to it. The merit of the decision, as opposed to its legality, is not a matter for this Court and was not a matter for the FCC.

FOURTH ASSERTED FAILURE 48 As to the fourth matter, the Authority did consider the appellant's claim that he was mistreated, monitored and interrogated: A[10]. It accepted this had occurred but thought the appellant no longer faced a risk of harm from being monitored, interrogated or mistreated: A[30]; A[37]. 49 The Authority did not fail to consider the appellant's claim and engaged actively with it as it was required to do in order to conduct the review contemplated by Part 7AA of the Act.

OTHER MATTERS 50 The additional 17 pages of written submissions filed on the morning of the hearing contained a number of contentions in addition to those set out above. Many of the contentions did not engage with the grounds of appeal. No application was made to amend the notice of appeal. No leave was sought to raise grounds not raised below. Nevertheless, I will address briefly what I took to be the main points. Before doing so, I should record that it was not appropriate to have filed the submissions without leave, particularly given that 13 pages of written submissions had already been filed by the appellant's solicitor and the further 17 pages of submissions raised a number of issues which went beyond what was relevant in the appeal. The further submissions were unnecessarily prolix and contained a significant amount of comment which was irrelevant to the resolution of the issues raised in the appeal. 51 I have earlier noted the submission that the delegate (and Authority) ought to have inquired of the appellant at the PV Interview about what things had been obtained from the brother's shop. 52 Counsel also made a broader submission about the delegate not making inquiries about a range of matters. Counsel's written submissions included: Then one looks at the first stumbling block to any proper consideration of the appellant's fear that a) if he return he will be shot and b) if he does not provide them with this brother's whereabouts and updated information he will be killed. That stumbling block or lack of consideration can first be found here. The department took the view that he does not have the evidence at hand, like a birth certificate or driver's licence and therefore did not press for it. This evidence is pivotal, and surely with the Department of Immigration's help, assistance and governmental methods of inquiry a UNHRC letter of confirmation may well have been obtained without effort, time and money and most importantly without putting the appellant and his family at unnecessary risk. 53 Nothing in the appeal, or before the Authority or FCC, turned on the appellant not having a birth certificate or driver's licence. 54 It was submitted that the delegate "actively chose to not pursue any information in favour of the appellant's protection" and "deliberately limited information" which might favour protection by not pursuing information from the appellant's brother, who was residing in Australia. It was submitted that "[e]ven if the information was not helpful, the evidence was relevant, available and essential and it was chosen by the [Minister] to not obtain it". 55 It was submitted (emphasis in original): …The information before the decision maker could have been and should have been better substantiated however it was decided by decision makers for the first respondent (as said above) that they had enough information in order to make a decision despite the fact the more information would have led to a fairer decision. That information was blocked from view, or redacted as often happens, in our submission so that the decision maker cannot be satisfied of any real chance that the appellant's claim of fear is properly founded or weighed with honest scales. The honest approach would have been [to] obtain all the evidence possible by [any] means possible, do [sic - to] not limit the information before it, and weigh all the facts. This was not done. Offcourse [sic] when a decision maker limits the information and evidence before it, it cannot be satisfied of the truth and judgement is flawed as a result - it follows whether in original or appellate jurisdictions. 56 It was submitted: …The error is in not choosing to have all the information before it, hence in 'selecting' and 'deselecting' evidence in order to conclude that the appellant's fear that he will be killed and other fears as per his own words (paras 16-18, AB139) are not well founded. 57 I was not able to discern from the material before this Court that the delegate or Minister had "deliberately limited information" or "selected" and "deselected" material "in order to conclude that the appellant's fear … was not well founded". In any event, even if the underlying factual propositions in these submissions had some evidentiary basis, the submissions did not engage with any ground of appeal. 58 It was not explained by reference to the statutory scheme or any authority how an asserted failure on the part of the delegate to inquire was said to have affected the Authority's decision in a manner which affected its exercise of jurisdiction or how the matter could be relevant to the appeal. These arguments were also not raised in the FCC, where the appellant was represented. 59 Whilst I was not referred to any authority, I considered what was said by the plurality in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] and by Nettle J in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [49] to [51]. I could not discern any merit in the proposition that there was a failure by the delegate to inquire sufficient to affect the Authority's exercise of its jurisdiction under Part 7AA of the Act. 60 Counsel submitted that one of the appellant's brothers was living in Australia on a protection visa. Counsel then referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 submitting that a claim not expressly advanced by an applicant will attract the review obligation where the claim is plain on the face of the material. It was submitted: …In other words while the appellant may not have advanced this claim the IAA and associates are under an obligation to review it and has that information and ability before it to properly do so. 61 The Authority was under an obligation to conduct the review which Part 7AA required it to perform. That was a review of the delegate's refusal to grant the visa for which the appellant had applied. The Authority was not under an obligation to review a claim which was not expressly or implicitly advanced. The Authority was not under an obligation to review the appellant's brother's situation in Australia or make a broad ranging inquiry of him. 62 Whilst there was little engagement with the real issues in the appeal in the lengthy written submissions filed on the appellant's behalf on the morning of the hearing, and some aspects of those submissions were inconsistent with the case which had been advanced in the written submissions filed by the appellant's solicitor on 17 January 2020, the earlier written submissions did engage with the grounds of appeal and were of significant assistance to the Court. Those submissions raised arguments of substance. Ultimately, however, for the reasons set out above, the FCC did not err in concluding that the appellant had failed to establish jurisdictional error on the part of the Authority.

Conclusion 63 The appeal must be dismissed with costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.