DPT17 v Minister for Home Affairs

Entry interview 6 The appellant was first interviewed when he entered Australia in October 2012 on Christmas Island. The appellant then attended an 'entry interview' on 20 January 2013. The entry interview record that is critical to this appeal records that the appellant was asked to provide (amongst other information) a range of biographical details, was asked about how he came to Australia and was asked why he left Sri Lanka. 7 The answer is stated as follows: One of my uncles was suspected of putting a bomb, and was detained. He was detained for having weapons in his house. He had the weapons in the house, because the LTTE have forced him to keep the weapons in the house. So I used to visit my uncle's house often, as he was close to my house. Whilst I was there, they caught him. The army asked me too, and I hid behind my auntie, they took my uncle, and he's in gaol, it's been 4 years and he's still in gaol. After that they visited my house a few times, and questioned me, asked if I had taken any bombs to Colombo. Then I was told to come and see them in the camp. Because of that, I went to Jaffna, this was in 2006. After that when I came back to my home, they came back, and started asking me about my old case, as my uncle is still in the gaol. My friends and I used to stand in the junction, and I wasn't aware that my friends were in the LTTE. When I returned home, my friends were shot, then taken away. My mum made me go in the house, and didn't let me go out at all. One time after that, they were looking for another friend called Raj, and they got me instead because of the confusion with the name. On the way, they got another guy as well, and they dropped me off at the junction, and told me to come the following day at 4pm. I went the following day, and they questioned me, and asked what involvement I had with my uncle, then my mum cried and they let me go. People are being killed there everyday, and 2 of my cousins were killed as well. Q: When did you have to go to the junction at 4pm? August 2012. Q: Who called you to the junction? The CID, but I don't remember their names. Q: What would of happened to you if you stayed in Sri Lanka? They would of detained me, if they are a little suspicious, they shoot people just like that. I think that is why my mother wanted me to get the passport.

Visa application 8 Included in the appellant's visa application of 2 April 2016 was a five page 'statement of protection claims' in which he outlined his claim, referring to (in summary): the arrest and torture of his uncle; members of the Criminal Investigation Department (CID) inquiring about his address; the CID informing his mother at his home that he should report to the army camp in Vavuniya; being questioned at the camp; then leaving for Jaffna; returning in 2012 but going into hiding; the army returning and enquiring about his whereabouts; remaining in hiding; and his mother then arranging for him to leave the country through an agent. He also referred to his belief that he would have been arrested by the army had he not been in hiding.

Before the delegate 9 The appellant attended an interview before the delegate on 19 September 2016. 10 In his decision record of 25 November 2016, the delegate listed the written information that was before him and said the following about the appellant's protection claims: The applicant's detailed written claims for protection including any supporting evidence and information provided verbally at interview are contained in CLF2015/76725. The applicant's claims for protection are summarised below: Material claim - 'Fear of persecution by the Sri Lankan Army and Government' The applicant stated, 'my main reasons for seeking the protection of Australia is fear of harm at the hands the Sri Lankan army and government on account of my Tamil ethnicity and social group relating to where I was born in assumed association with the Liberation Tigers of Tamil Eelam, the LTTE.' Specific integers of his claim are contained in his five pages of written testimony; TRIM reference - CLD2016/9563437 - 77721261046 - FRA038 - SHEV Application - 06.04.2016; on pages 39-43: (footnote omitted) 11 By way of Attachment A to his reasons, the delegate also included a list of materials under the heading 'Material before the case officer'. That list is as follows: Departmental file CLF2015/76725 relating to the applicant (SHEV application file). Australian case law, where necessary. Country information as referred to throughout this assessment. The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Re-issued, Geneva, December 2011 (the UNHCR Handbook). Procedures Advice Manual 3: Refugee and Humanitarian - Refugee Law Guidelines. Procedures Advice Manual 3: Refugee and Humanitarian - Complementary Protection Guidelines. Procedures Advice Manual 3: Refugee and Humanitarian - Common Processing Guidelines. Procedures Advice Manual 3: Refugee and Humanitarian - Temporary Protection and Fast Track Assessment Process. 12 It is apparent that the reference to the 'five pages of written testimony' in the extract from the decision record is a reference to the five page document forming part of the appellant's visa application of 2 April 2016. 13 Under the heading 'Part 5: Findings of Fact' the delegate included the following: At his PV interview on 19 September 2016, the applicant expounded upon the details in regards to the instances of persecution, harm and/or discrimination that had allegedly occurred to himself and/or to other members of his family whilst previously in Sri Lanka, up until his departure from Sri Lanka in September 2012. Key matters central to his claims, including any adverse information, were put to the applicant to determine the relative credibility of his protection claims and in doing so, determine the factual basis of these claims. Findings of fact I found that the evidence provided at interview was generally consistent with the applicant's written statement of claims. During the course of the interview, some inconsistencies emerged in respect of exact dates and the exact sequence of events. These inconsistencies were put to the applicant and further discussed. Overall, despite what I believe to be some exaggeration in respect of the recounting of some incidents, there is no evidence to suggest that these claims have been fabricated. I therefore accept the applicant's claims in relation to specific incidents and events that had allegedly occurred to himself and/or to other members of his family whilst previously in Sri Lanka up until his departure from Sri Lanka in September 2012. 14 Of note in the reasons are the reference to the five pages of written testimony, the reference to the singular 'statement of claims', the absence of any reference to the entry interview in Attachment A and the absence of any reference by the delegate in his decision record to the entry interview.

The Authority 15 The appellant provided written submissions to the Authority dated 29 April 2017 prepared by his legal representative (lawyers' submission). The submission refers extensively to the transcript of the delegate's interview and the statement of protection claims attached to the visa application, but does not refer to the entry interview. 16 On 21 July 2017 the Authority published its reasons affirming the decision under review. It stated that it 'had regard to the material referred by the Secretary under s 473CB' of the Act. It also referred to the lawyers' submission, accepting it as argument rather than new information. It also said that in accordance with s 473DC(1) of the Act it had obtained new country information (a 2017 DFAT report prepared for the purpose of assessing applicants' claims for protection) and was satisfied there were exceptional circumstances to justify considering the new information. 17 It is apparent that the Authority had before it the entry interview record, and that it relied on it in making adverse credibility findings against the appellant. Inconsistencies between that interview and the appellant's interview before the delegate were relied upon to reject parts of the appellant's narrative of events that he said had happened to him and that gave rise to the basis of a pro-LTTE imputation. The centrality of the entry interview to the Authority's reasoning can be seen from the following extracts from the Authority's reasons: 9. In his SHEV interview [before the delegate] the applicant did not refer to his claim regarding the forced recruitment by the LTTE of his brother, A, until reminded of it at the end of his interview by the delegate and did not refer at all to his own claim to have been forced to chop logs for the LTTE in 2008/2009. I also note that neither of these claims were made by the applicant in his earlier entry interview with the Department on 20 January 2013 although he did refer to having friends in the LTTE (which he says he wasn't aware of at the time). … However, I do not consider it plausible that the applicant would refer to having friends in the LTTE but not mention his own or his brother's involvement. I do not accept that his brother A was conscripted into the LTTE for training in approximately 2007 for 6 months or that he was forced to chop logs for the LTTE in 2008/2009. I accept it is plausible that two of his cousins were killed either during or immediately after the war, although he provided no details of what happened to his cousins, specifically stated they were not members of the LTTE, and has made no claims regarding the significance of their deaths to his circumstances or claims. I also accept is it plausible that some of his friends were in the LTTE and have disappeared, however, for the reasons set out below I do not accept that his friendship with them has had any repercussions for the applicant. 10. While the applicant has consistently claimed since his arrival to have been the subject of interest to the authorities because of his ethnicity and family connection to his uncle who he claims was arrested, charged and imprisoned for four years for having stored arms, ammunition and explosives in his home for the LTTE, his evidence as to when these events occurred and what he did between that event and leaving Sri Lanka has significantly varied. 11. In the written statement submitted with his SHEV application [the five page written statement] and at the SHEV interview, the applicant said his uncle was arrested in 2008, the CID came to his home looking for him shortly afterwards and told his mother to bring him to Joseph Camp where he was questioned by CID officers about whether he assisted in transporting explosives to Colombo. After this, his mother sent him to Jaffna where he stayed from 2009 until 2012, when he returned and lived in hiding until he left Sri Lanka. However, in his entry interview he provided a materially different timeline for these events. He said that after his uncle was detained for having weapons in his house, they came and visited his house a few times, then he was told to come to see them in the camp and because of that he went to Jaffna and this was in 2006. The address history he gave in that interview indicates that he lived in Jaffna from 2006 until 2007 and that he returned to Vavuniya in 2007 where he remained living and working until leaving Sri Lanka in 2012. He gave a work history of jobs he worked at in his home area in Vavuniya during the period he later claimed to have been in Jaffna including a short period in 2010 when he worked for the UNHCR as a security guard. 12. In the written statement which accompanied his SHEV application, the applicant stated that in an earlier interview (which I take to be a reference to his entry interview), he was asked to be brief and so did not give details of all his claims; there may also be some statements in his previous information that may be inconsistent. I accept that arrival and entry interviews are not conducted for the purposes of assessing an applicant's claims for protection and that in that process, applicants do not have the benefit of representation. However, I do not consider this adequately explains the very different timeline of events he gave between his entry interview and his SHEV application and oral evidence. I note that while the applicant stated in his SHEV application that he would provide a detailed work and address history to the delegate at his interview, he did not do so. 13. The applicant's claims in his entry interview provide a significantly different timeline for the events which he claimed precipitated his leaving Sri Lanka which, in turn, affect his claim to have spent three years away from his home area and then to have returned and lived in hiding because of adverse interest from the authorities. Given the consistency with which he has made the claim regarding his uncle, I accept that his uncle was arrested for having stored materials (arms, ammunition, explosives) for the LTTE and that he was subsequently jailed for that offence. I also accept that the applicant was there when his uncle was arrested and because of that, he was shortly afterwards questioned for an hour by the CID about whether he was involved in transporting bombs to Colombo. I also accept that afterwards he went to Jaffna to live. However, I find that these events took place in 2006 and that the applicant returned to Vavuniya in 2007 where he worked in a series of jobs including painting, driving a taxi, woodcutting, masonry and security work before leaving Sri Lanka in 2012. 14. The evidence before me indicates that after his initial questioning following his uncle's arrest, the applicant had no further interactions with the authorities. If the authorities had maintained an interest in the applicant due either to his ethnicity, friendships or family connections, he would have been easily located as he remained living and working in his home area. Country information indicates that the city of Vavuniya was marked by an extensive security regime which resulted in human rights violations and economic suffering for the local population. The International Commission of Jurists reported in 2010 that any association with the LTTE was grounds for arrest. Under the Prevention of Terrorism Act (PTA) (which remains in place), the security forces had sweeping powers to search, arrest, and detain. Detainees may be held for up to 18 months or more, arbitrarily and without charge. The fact that the applicant continued to live and work in and around the Vavuniya area throughout this period without having ever again come to the attention of the authorities indicates that he was of no interest and I reject as fabrications his claims that following his questioning, he was told that whenever they called he had to come to the camp, that he went to Jaffna for three years, and that he returned to Vavuniya in 2012 and went into hiding and that the SLA and CID went to his family home looking for him during the time he was in hiding. 15. I am also not satisfied that while he was in Jaffna in 2006, his parents advised him that the army authorities had made enquiries of him in Vavuniya. He made no reference to this in his SHEV interview and in fact stated when the delegate asked whether anything happened while he was in Jaffna no, that he had no connections with his house during that time. 16. At his SHEV interview, the applicant provided a copy of a letter in the Tamil language, together with an English translation which he stated in his written claims was sent to his mother in 2014 in Sri Lanka from the army. … Given the credibility and implausibility issues with the applicant's evidence, and noting the country information about the general prevalence of document fraud in Sri Lanka, I do not accept that the police letter is a genuine document. I also reject his claim that since the letter was delivered there have been 2 or 3 more enquiries at his family home. I am not satisfied that, at the time he left Sri Lanka, the applicant was a person of interest on the basis of his uncle's arrest and jailing for storing material for the LTTE. Tamil ethnicity/imputed political opinion generally 17. The applicant's representative submitted that in accordance with the UNHCR Eligibility Guidelines considered by the delegate and the DFAT December 2015 report, the applicant's profile provides a strong basis for finding that he would be at risk of harm if he is returned either because of his own work for the LTTE or his family connection through his uncle and brother. For the reasons set out above, I reject this claim. I have found that the applicant was questioned once in 2006 and not thereafter which, in my view, indicates the authorities considered their enquiries into the applicant concluded and had no further interest in him. … 24. I have rejected his representative's submission that he falls under one of the 'at risk' categories identified by the UNHCR in the 2012 Guidelines (people with certain real or perceived links to the LTTE that go beyond residency in an LTTE controlled area). Nonetheless, I accept that the government remains sensitive to the potential re-emergence of the LTTE and in the past this has resulted in Tamils being at risk of routine screening for LTTE connections and possible extended detention; there were also reports of abuse and torture of airport detainees with a history of opposing the government. … 25. More recent country information indicates that the focus of the Sri Lankan authorities now is on those who have, or are perceived to have, a significant role in relation to post-conflict Tamil separatism either within the diaspora or a renewal of hostilities within Sri Lanka, or whose name appears on a 'stop' list at the airport. There is information before me that the Sri Lankan authorities have continued to arrest, interrogate and, in some cases detain for extended periods, arrivals identified as having had a previous connection to the LTTE or Tamil separatist activities. I have found that after his questioning in 2006, the authorities had no further interest in the applicant and the country information does not support a conclusion that simply being a Tamil asylum seeker will lead to an imputation of a pro-LTTE or anti-government opinion, or otherwise lead to harm on his return. (footnotes omitted)

Federal Circuit Court 18 The grounds relevant to this appeal were also raised before the primary judge. 19 The appellant's lawyers filed submissions in support of the judicial review application before the Federal Circuit Court in which they raised the Authority's use of the entry interview, stating as follows: The entry interview was relied upon by the IAA for its rejection of the Applicant's evidence as to what happened to him in Sri Lanka. However, there is nothing in the delegate's reasons that suggests the entry interview was before him at the time he made his decision. Accordingly, the entry interview was 'new information' for the IAA: see s 473DC of the Act. Two consequences flow from the entry interview being 'new information'. First, under s 473DD(a) of the Act, the IAA was prohibited from considering the entry interview unless it was satisfied that there were 'exceptional circumstances' for it to do so. However, the IAA did not conduct any assessment of whether there were exceptional circumstances. This itself is a jurisdictional error. Second, the entry interview was clearly 'part of the reason' for affirming the visa refusal. However, in order for the IAA to permissibly rely on the entry interview to affirm the refusal, the IAA needed to comply with the obligation in s 473DE to give the Applicant particulars of that entry interview, explain why it was relevant to the review, and invite him to respond. It did not do so, and, since none of the exceptions in s 473DE(3) applied, it was a jurisdictional error for the IAA to use the entry interview in this way. (footnotes omitted) 20 The matter was listed for hearing before the primary judge on 19 September 2018. The day before, a solicitor retained by the Minister (Ms Bensted) affirmed an affidavit. That affidavit was not read in the proceedings, a position accepted by the Minister. At the hearing, the Minister's counsel sought an adjournment so that a further affidavit could be obtained to support the Minster's contention that the entry interview had in fact been before the delegate. 21 I was told that the adjournment was opposed by the appellant but granted by the primary judge. The primary judge also relevantly made an order that: [By] 4pm on 3 October 2018 the first respondent file and serve such further affidavit evidence as he may be advised [de]posing to information that was before the delegate. 22 The Minister then filed an affidavit of Alan Smith dated 3 October 2018, which was read and admitted without objection when the hearing resumed on 25 October 2018. 1. I am the A/g Assistant Director of the National Allocations and Finalisations Section of the Department of Home Affairs ('Department'). My responsibilities formerly included managing an administrative team, which included overseeing Review officers who transfer Subclass 785 and 790 Fast Track applications and supporting materials from the Department to the Immigration Assessment Authority 2. I have perused the electronic files held by the Department in relation to this matter. I make this affidavit on the basis of the information contained in those files, and from my own knowledge, unless otherwise stated. The Department does not maintain a paper file with numbered folio entries for Fast Track matters, as it does with other types of visa applications. 3. On 30 November 2016, the Department sent the Immigration Assessment Authority ('IAA') a copy of documents contained in departmental file CLF2015/76725 (referred to in the delegate's decision) which the delegate of the Secretary considered to be relevant to the review pursuant to s 473CB of the Migration Act 1958. This file was referred to the IAA as a PDF titled "D-1-PRID455588084-[applicant's surname]-[first name]-CID77721261046". Attached and marked "A" is a copy of the Department's upload confirmation email. Attached and marked "B" is a copy of the Department's "Referrals to the IAA and Disclosure Checklist" ('the Checklist') which contains a list of the documents contained in the file referral. 4. The Checklist, which was prepared by the delegate after the Protection visa decision, includes reference to the entry interview document with the TRIM reference ADD2013/l77373. The screenshot of the document ADD2013/l77373 shows that the document was 'created' on 5 February 2013 at 11.01am and, under 'Access Control', notes that the document is accessible to 'Everyone' to view. Annexed hereto and marked "C" is a true copy of the screenshot. On 25 November 2016, the Protection visa decision was made and, to the best of my knowledge and belief, the document was available to the delegate at the time he made his decision. 5. Annexed hereto and marked "D" is a true copy of the screenshot of the entry interview audio file recording, as saved on TRIM, and as referred to in the Checklist with the TRIM reference ADD2013/179567. The screenshot shows that the document was created on 20 January 2013 at 4.30 pm, and under 'Access Control', notes that the document is accessible to 'Everyone' to view. To the best of my knowledge and belief, the document was available to the delegate at the time he made his decision. 23 The primary judge did not refer to the Smith affidavit in his reasons. The primary judge said that the Bensted affidavit answered the question of whether the transcript and audio were before the delegate 'in an irrefutable way'. The primary judge found that therefore the entry interview was not new information and rejected that ground of review.

Grounds 2A and 2 24 Originally three grounds of appeal were propounded in the notice of appeal. The appellant has not pursued ground 1. At the hearing, leave was granted to add ground 2A. Therefore, only grounds 2A, 2 and 3 are to be considered. Grounds 2A and 2 were considered together and are as follows: 2A. The trial judge erred in finding that the entry interview was before the delegate at the time of his decision. 2. The trial judge erred in failing to find that the IAA's consideration of the entry interview was done: a. without the IAA first determining whether it was satisfied that there were exceptional circumstances justifying its consideration; and b. without the IAA complying with its obligations under section 473DE of the Act. 25 In my view, the Bensted affidavit did not resolve the stated question. It did no more than attach the checklist, which is referred to more fully below. In any event, the primary judge should not have relied on an affidavit that was not read. In doing so he ignored the appellant's right to procedural fairness. Because it was not read or otherwise relied upon, the appellant was denied any opportunity to cross examine or make submissions about that affidavit. There was no suggestion that the primary judge considered or applied r 15.29A of the Federal Circuit Court Rules 2001 (Cth) as a basis to use the affidavit without cross-examination. 26 Counsel for the Minister submitted that the appellant's challenge to the primary judge's reliance on the Bensted affidavit should have been the subject of a specific ground of appeal. However, he conceded that the Minister would suffer no prejudice provided he was permitted to make submissions as to whether the primary judge's findings should be upheld on the basis of the Smith affidavit (which was in evidence before the primary judge). The hearing proceeded on that basis that both parties were able to address the Smith affidavit. 27 However, the factual question as to the entry interview falls for determination essentially de novo on this appeal, purely by reference to the documents that were in evidence. This is not a case where the primary judge was presented with witnesses adducing oral evidence. This is not an occasion where, with respect, it is necessary to defer to the finding of the learned primary judge on account of any perceived advantage in determining factual questions: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552. In construing the proper inference to draw from the materials, this Court is in as good a position as the primary judge to determine whether the entry interview was before the delegate: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] quoting Warren v Coombes. 28 What is apparent from the delegate's reasons is that: (a) there was a departmental file numbered CLF2015/76725 relating to the appellant (referred to by the delegate as the SHEV application file); (b) the delegate made a list of materials that were before him and listed them in Attachment A to his reasons; (c) the CLF2015/76725 file was listed in Attachment A and so was before the delegate; (d) there is no reference to or suggestion in the delegate's reasons that the delegate had before him or accessed the relevant TRIM reference (see below) for the purpose of his decision; (e) the delegate was alive to the need to put 'any adverse information' to the appellant; (f) the delegate was alive to the need to consider inconsistencies in evidence from the appellant and expressly addressed inconsistencies; and (g) the delegate referred to a statement - which in context must be the 'five page written statement' - but did not refer to the entry interview or the existence of any other interview. 29 The checklist is one of the annexures to the Smith affidavit. The checklist includes, relevantly, a general heading 'Review materials', and under that heading details such as the appellant's contact address are inserted. There is then a subheading which reads, 'the PDFP contains the following material', and beneath that heading are listed some 24 categories of documents. A second column is headed 'status', and it provides an indicator next to each document of 'yes', 'no' or 'N/A' for selection. A third column is headed 'Non-disclosure considerations' (and there is a reference to s 473GB next to some items). The fourth column is headed 'TRIM Reference (for records that are NOT contained in the TPV/SHEV client file)'. Importantly, one category of documents listed in the first column is 'Entry interview (transcript and audio file) + those of any dependant applicants'. The indicator 'yes' is selected, and those documents are given a particular number (ADD2013/179567) which is listed in the fourth column. In other words, those items have a 'TRIM' Reference ADD2013/179567 and are not within the SHEV application file CLF2015/76725. 30 What can be gleaned from the Smith affidavit is that: (a) after the delegate's decision, a checklist was prepared: the checklist does not clearly state who prepared it but Mr Smith asserts it was the delegate (and I note that the person identified as the 'case officer' on the checklist appears to be the same person as the delegate); (b) although Mr Smith attaches two screen shots which identify that the entry interview transcript and audio were accessible to 'everyone', it is unclear whether this was the case as at the time of the delegate's decision: the dates of the screen shots or dates of entries are not identified; (c) the affidavit does not disclose whether the delegate in fact accessed the TRIM file containing the entry interview transcript and audio file or otherwise had the TRIM file before him; (d) there is no suggestion Mr Smith checked the position with the delegate or any of the delegate's staff or colleagues, or ascertained if the delegate kept any other notes about materials to which he had regard, or was otherwise familiar with the manner in which the delegate kept records of documents before him or prepared any checklist; and (e) the highest that the position as put by Mr Smith can be stated is that he believes the entry interview was 'available' to the delegate because it was uploaded to a separate TRIM file and that TRIM file was noted at some point in time as 'accessible' by everyone. 31 I note three other points about the Smith affidavit. First, Mr Smith described his role as managing an administrative team and overseeing review officers who transfer fast track applications to the Authority: he does not claim to have first-hand knowledge of the delegate's process for identifying the materials that were before him and listed in Attachment A to his reasons. 32 Second, the affidavit does not explain the absence of any reference to the TRIM reference documents from the list of materials in Attachment A to the delegate's reasons or elsewhere in the reasons. 33 Third, the affidavit twice refers to the TRIM reference documents being 'available' to the delegate. That appears to be a careful choice of words against a backdrop where the Minister was on notice of the appellant's argument that the entry interview was not before the delegate by way of the written submissions filed in the Federal Circuit Court; where the Minister then sought and obtained an adjournment; where the primary judge permitted the Minister to file further affidavit evidence deposing to information that was before the delegate; where s 473DC of the Act is concerned with documents or information that were not before the Minister or delegate (see s 473DC(1)); and where the Court has previously noted the distinction between documents being simply in the Department's control and documents being before the Minister (see DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [37]-[38]). 34 The appellant invited the Court to draw an inference that the entry interview was not before the delegate. It was said that the Court could safely draw an inference that the entry interview was not before the delegate based on the delegate's reasons and the checklist. The Smith affidavit did not provide contradictory evidence that prevented such an inference being drawn. 35 Further, it was said that a Jones v Dunkel inference should be drawn from the failure of the Minister to adduce evidence of the delegate or someone from the Department who was able to give evidence as to the entry interview having been downloaded by the delegate or otherwise having been before the delegate. Jones v Dunkel reasoning would involve the drawing of an inference that any evidence given would not have assisted the Minister. 36 The Minister contended that the appellant had failed to meet his onus of establishing that the entry interview was not before the delegate, and that there is no basis for any Jones v Dunkel inference to be drawn taking into account both the rule in Browne v Dunn and the protected position of someone in the positon of a delegate. 37 In order to raise an inference of a negative proposition, sufficient evidence of the same needs to be adduced by the party carrying the onus. Evidence merely giving rise to speculation is not adequate: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616-617 [67]-[69]. That said, even somewhat slight evidence may be sufficient in circumstances where the opposing party which has all the knowledge of the relevant fact fails to adduce evidence to the contrary. This proposition is supported by the principle that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted': Blatch v Archer (1774) 1 Cowp 63 at 65. 38 In this case, there was little more that the appellant could do in terms of meeting the onus of proof than refer to the delegate's reasons and the evidence evinced by the Minister and invite appropriate inferences to be drawn. It is important to bear in mind the peculiar circumstances of this case, that is, that the Minister had sought an adjournment and the primary judge had expressly granted the Minister the opportunity to put on evidence as to what was before the delegate. The Smith affidavit was filed pursuant to that order. 39 The checklist annexed to the Smith affidavit (and as described above) does not establish that the entry interview transcript and audio were before the delegate when he made his decision. It establishes that the producer of the document has marked the entry interview transcript and audio in the list of documents with the indicator 'yes'. Whether the indicator 'yes' under the heading 'status' records the existence or inclusion of the document for consideration by the Secretary or whether it has some other meaning is unclear. The checklist also establishes that the entry interview transcript and audio were not in the SHEV application file CLF2015/76725 but in a different location. On its face, the checklist is not a checklist of documents before the delegate but is a checklist prepared for the purpose of the review by the Authority. 40 Nor do I consider the Smith affidavit establishes that the entry interview transcript and audio were before the delegate. I have addressed the limitations of the Smith affidavit above. 41 In this context, given that the Minister has produced no evidence that squarely establishes that the entry interview was before the delegate, the question is whether there is some evidence, even if comparatively slight, that the delegate did not have the entry interview before him. 42 I am persuaded that I can safely draw an inference that the entry interview was not before the delegate when he made his decision. The delegate does not refer anywhere in his reasons to the entry interview. I have not overlooked that mere failure to refer to a document does not mean that a delegate has not had regard to it. However, in this case the delegate expressly refers to the appellant's five pages of written testimony; he refers in the singular to a 'statement' of the appellant's claims; he provides a list of materials before him in Attachment A; that list of materials does not refer to the entry interview; and the checklist indicates the entry interview was not in the SHEV application file. Moreover, the failure by the delegate to refer to the entry interview must be viewed against the fact that the delegate directed his attention both to putting 'any adverse information' to the appellant and to inconsistencies with respect to dates and sequences of events. As is clear from its terms and as the Authority found, the entry interview contained material that conflicted with the other claims made by the appellant and so was adverse to the appellant. It would be surprising that if the entry interview were before him the delegate would not have raised such inconsistencies with the appellant, as he raised other inconsistencies. In the absence of any contradictory evidence from the Minister, I infer that the entry interview was not before the delegate. 43 I do not consider it necessary to apply Jones v Dunkel reasoning to reach that conclusion. However, in this particular case, the inferences that I have drawn are reinforced by such reasoning, and in particular the absence of any evidence from the Minister, the delegate or a person with knowledge of the materials that were in fact before the delegate. That outcome arose in circumstances where the primary judge adjourned the hearing at the Minister's request and had expressly provided to the Minister the opportunity to put on any such evidence. The failure to provide such evidence does not provide positive evidence that the entry interview was not before the delegate but it leaves the Court in the position where the opposing inference can more confidently be drawn. 44 I do not consider the rule in Browne v Dunn operates to prevent the application of the rule in Jones v Dunkel. The Minister contends that Mr Smith should have been cross examined if the appellant wished to rely on any inference arising from what was or was not said by Mr Smith. The appellant does not challenge what is said by Mr Smith in his affidavit. No adverse inference is sought against Mr Smith. In fact, the appellant accepts Mr Smith's evidence as accurate. Regardless, the Minister knew before the hearing that the appellant sought to invite the Court to draw an inference that the entry interview was not before the delegate. Mr Smith was able to address that matter in his affidavit. 45 Nor do I accept the Minister's broad submission that the principle in Jones v Dunkel does not apply to the failure to call an administrative decision maker. That submission would only be relevant if the appellant argued that the delegate should have personally given evidence. The appellant did not put his submission so narrowly, suggesting rather that the delegate or someone in his office or its information technology support group could have given evidence as to whether the entry interview was in fact before the delegate. 46 In support of his submission, counsel for the Minister relied upon Muin v Refugee Review Tribunal [2002] HCA 30, where the Court refused to draw a Jones v Dunkel inference in the case of a Refugee Review Tribunal member, and Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, where no inference was drawn in the case of a Minister. However, neither of these cases assist the Minister in this case. 47 As Muin acknowledges, tribunal members have the same protection and immunities as a Justice of this Court: see Administrative Appeals Tribunal Act 1975 (Cth) s 60. Accordingly, it would be inconsistent with the protection and immunities of a tribunal member to draw inferences from the failure of the tribunal member to give evidence concerning the matters which he or she took into account: Muin at [118]. However, this matter concerns a delegate of the Minister, not a tribunal member. Counsel for the Minister argued that the delegate should be afforded the same protections. Such protections are not accorded the Minister and counsel did not point to any authority that explained a basis for extending them to a delegate of the Minister. As explained in Jia, the position of the Minister is substantially different from that of a judge or quasi-judicial officer and it would be wrong to apply to his or her conduct the standards of detachment which apply to judicial officers or jurors (at [102]). 48 There are other reasons why the principle in Jones v Dunkel inference may not, depending on the circumstances, be appropriately drawn in the case of the Minister, as explained in Jia: [316] The Federal Court has held on a number of occasions that the principle laid down in Jones v Dunkel can be invoked against a Minister of the Crown. In Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs Pincus J with some apparent hesitation did so. His Honour said: "The respondent did not give evidence. His senior counsel argued with, as it seems to me, some cogency that performance of his Ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions. It may be thought that the argument just mentioned justifies a departure from the ordinary principle laid down in Jones v Dunkel ... as to the results of failing to give evidence. On the other hand, in the absence of their author, it is hard to resist drawing from the notes just quoted two inferences which may assist the applicants ..." [317] It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent. Considerations of public interest immunity may loom large in some cases. A Minister is a policymaker and policy advocate as well as a decision-maker. Furthermore, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer and cited recently by this Court in Vetter v Lake Macquarie City Council, that evidence has to be weighed according to the circumstances of, as well as the capacity of a party to adduce it. (footnotes omitted) 49 However, the Court will not hesitate to apply the principle in appropriate cases where the Minister does not give evidence: see, for example, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [130]-[131]. 50 It follows from the inference that the entry interview was not before the delegate at the time of his decision to refuse the protection visa that the entry interview was 'new information' before the Authority for the purpose of Part 7AA. 51 It is apparent from the Authority's reasons that the entry interview was relevant to various findings. 52 As appears from [9] of its reasons, the Authority rejected the appellant's claim made in his interview with the delegate that his brother was forcibly recruited by the LTTE. It noted that such a claim was not made in his entry interview and it did not consider it plausible that such a claim would not be mentioned. 53 As appears from [11], the Authority summarised the timeline of events based first on the appellant's visa application and interview with the delegate, and then on the entry interview. Under the first timeline, the appellant's uncle was arrested in 2008, the appellant was questioned and went to Jaffna from 2009 until 2012 and then returned and lived in hiding before departing Sri Lanka. In the second timeline, the appellant's uncle was detained and the appellant then went to Jaffna in 2006. He stayed there from 2006 until 2007 and then returned to Vavuniya, where he remained working and living until departing Sri Lanka. The Authority cited the significantly different timelines and found that the difference affected his claim to have been living in hiding because of adverse interest. The Authority preferred the timetable in the entry interview: it found that events involving his uncle took place in 2006 and that the appellant returned to Vavuniya in 2007 where he worked in a series of jobs before leaving Sri Lanka in 2012. The rejection of the appellant's claim that he was in hiding was relevant to the Authority's finding that if the authorities had maintained any interest in him he would have easily been found because he was living and working in his home area and relevant to the rejection of the claim that the authorities would have had any interest in him in that period. 54 The rejection of the claim that he was in hiding also appears relevant to the findings at [17] and [25] to the effect that after 2006 the authorities had no further interest in him. Each of the Authority's findings with respect to lack of imputed political opinion, absence of a real chance of serious harm upon return as an asylum seeker and the absence of a real risk of significant harm (for the purpose of the complementary protection assessment) refer to and take into account the findings to the effect that the appellant was not the subject of further interest from authorities (at [17], [21], [25] and [36] of the reasons). 55 Therefore, the inconsistency in the timeline disclosed by reference to the entry interview was on its face relevant to the Authority's reasoning that led to the rejection of claims made before the Authority and its finding that the appellant fabricated claims. 56 Counsel for the appellant submitted that alternative positions arise from the Authority's reasoning pathway once one accepts that the entry interview was new information. First, it cannot be assumed that the Authority necessarily would have been satisfied under s 473DD that there were exceptional circumstances to justify considering the new information. Had the Authority not considered it, the inconsistencies in the entry interview would not have been disclosed and there was at least the possibility that the adverse credibility findings might not have been made. There was at least the possibility that the Authority may have formed a different view as to whether the appellant had been in hiding and whether he had the requisite profile to be a person at risk of harm. Second, if the Authority did consider the entry interview to be new information then it was obliged to put the new information to the appellant for comment under s 473DE of the Act if it would be a reason or part of a reason to affirm the refusal of the visa (EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180 at [45]). That did not occur. Had it occurred, it is possible that the appellant could have explained the inconsistencies in his evidence and persuaded the Authority to accept his evidence despite those inconsistencies. 57 Both these scenarios are counterfactuals but they disclose, in my view, that the manner in which the entry interview was treated was material to the outcome, in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]. The essential question is whether there is a realistic possibility that the Authority's decision could have been different had it appreciated that the entry interview was new information. The Court must be alive to the potential for information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result: SZMTA at [48]. 58 More recently, the Full Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 described the relevant threshold as whether the error 'could have affected the outcome of the review': at [42]. The Court said that whether that is so will normally turn on an analysis of the appellant's claims and the reasons given by the administrative decision-maker, in that case the Authority. 59 In DPI17 v Minister for Home Affairs [2019] FCAFC 43, where the Immigration Assessment Authority gave no reasons on the issue of whether it exercised its discretion under s 473DC of the Act, it was observed that a modified approach may be required in such a case. There Griffiths and Stewart JJ posed the question of whether, had the Authority turned its mind to the exercise of the relevant power and then invited the appellant to provide 'new information', the Authority might have assessed the significance of the relevant inconsistencies differently. In that case Griffiths and Stewart JJ considered the Authority's ultimate decision 'might have been different' and therefore the error was material. 60 Counsel for the Minister said that there appeared to be no issue in this case with satisfaction as to exceptional circumstances on any application of s 473DD, stating that the Authority on the basis of its reasons must have considered the information important. Counsel accepted that s 473DE was not complied with. However, the Minister submitted that grounds 2A and 2 should be disposed of on the basis of materiality. The Minister submitted that the credibility findings of the Authority, the finding that the appellant's timeline was not accepted and the finding that the appellant was not in hiding and was not the subject of further interest from authorities were not relevant to the outcome and so any error with respect to the entry interview and non-compliance with s 473DD or s 473DE was not material. It was said that regardless of the position for Tamils in the past, the Authority focussed on the risk upon return to Sri Lanka and rejected the appellant's submission that he has real or perceived links to the LTTE. 61 Counsel for the Minister submitted that the delegate, who had accepted the appellant's version of events, had nonetheless found that the appellant does not hold a well-founded fear of persecution, and invited the Court to draw the inference that even if the Authority had accepted the appellant's story, it would have reached the same ultimate conclusion. 62 However, as already noted, the conclusions of the Authority reveal a basis at least in part in the findings I have identified. There are also parts of the reasoning that acknowledge that arrivals who identified as having a connection with the LTTE may be treated differently (for example, they may be detained for extended periods - at [25] of reasons). Therefore, the findings are relevant to the Authority's reasoning and rejection of the appellant's claims. The Authority might have assessed the significance of the relevant inconsistencies differently had it received comments from the appellant. This Court is not to embark on merits review in order to assess whether or not a different result would or should have ensued. It is enough that the Court is satisfied (as I am) that it is realistically possible that the error in not appreciating that the entry interview was new information could have led to a different result. 63 It follows that grounds 2A and 2 of the appeal must be allowed. I accept the appellant's submissions that the matter should be reconsidered by the Authority. 64 Regardless, I will deal with ground 3.

Ground 3 65 This ground asserts that the primary judge erred in failing to find that the Authority failed to consider the appellant's claim that during any period of detention upon return he would be exposed to a real chance or real risk of torture. 66 In short, the appellant submitted that although the Authority considered (and rejected) his claim in the context of imprisonment, it did not consider that part of his claim that encompassed risk of harm in detention other than prison, and for however brief the period of that detention might be. 67 The appellant contended that the representation was clearly made by various statements in his lawyers' submission before the Authority. 68 The lawyers' submission refers to the risk of harm by being detained on arrival at Colombo airport or afterwards. It sets out the process undertaken with respect to involuntary returnees at Colombo airport after they clear immigration, a process that includes checks by the Department of Immigration, State Intelligence Service officials, CID officials and an interview with Sri Lankan police officials (the appellant referred to this stage in this appeal as 'airport detention'). The lawyers' submission then submits that a 2015 DFAT report demonstrated that if forced to return to Sri Lanka, the appellant will be detained, interrogated, imprisoned on remand, tried, convicted and punished for charges relating to his illegal departure from Sri Lanka, and the appellant's fear that throughout that process he will, at one stage or another, face a real chance of persecution or significant harm by way of his treatment. 69 The lawyers' submission then referred to information referred to in a decision of the UK Upper Tribunal (as cited by the delegate) in support of the submission that any period of detention - even brief - will subject the appellant to a real risk of significant harm as defined in s 5(1) of the Act. The UK decision noted country information from 2013 to the effect that 'if a person is detained by Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection', and a reference in that information to an observation that 'a great majority of people detained for interrogation were ill-treated'. 70 The lawyers' submission referred to a 2012 UNHCR report (also referred to by the delegate) which stated that 'Torture is endemic in Sri Lanka and is practised at every police station and detention centre', and that the UN Committee against Torture had expressed concern as to ill-treatment 'including in police custody'. 71 The lawyers' submission also relied on a separate decision of the Authority which in turn referred to a UN Special Rapporteur from May 2016 that stated that 'torture is a common practice carried out in relation to regular criminal investigations in large majority by the [CID] of the police'. 72 The primary judge noted that the appellant's submissions before him stated that his claim in this regard was not premised on the appellant having any particular profile. 73 In my view, the reasons of the Authority indicate that it was alive to and considered the appellant's claims about detention more broadly that in the context of imprisonment. 74 The Authority had before it the country information that was before the delegate. It expressly referred to the country information by way of the 2012 UNHCR report (including at [24] of its reasons) and the 2015 DFAT report (including at [14], [17] of its reasons). It is true that the Authority does not expressly refer to those reports in the context of prospective treatment in detention. However, it is important to take into account that the Authority discloses in its reasons that it had before it a more recent DFAT report, being a DFAT report of 24 January 2017. The Authority says of the report: [4] In accordance with s.473DC(1) of the Act I have obtained new country information about Sri Lankans who have departed Sri Lanka illegally and sought asylum while overseas from the most recent Department of Foreign Affairs and Trade report (the DFAT 2017 report). The DFAT 2017 report is dated 24 January 2017 and was therefore published after the date of the delegate's decision. The delegate relied on information in DFAT reports dated up to 18 December 2015. The DFAT 2017 report is DFAT's most recent assessment of country conditions in Sri Lanka and has been prepared specifically for the purpose of assessing applicants' claims for protection. I am satisfied that there are exceptional circumstances to justify considering this new information. (footnote omitted) 75 The Authority clearly considered the prospect of imprisonment. The appellant relies on a statement in the reasons that 'his representative has submitted that he fears torture or other harm in prison.' The appellant submitted that such statement defined the extent of the Authority's attention to his claim: that is, that statement indicates the Authority did not consider his claim to fear harm in detention more generally. In my view, the appellant's focus on that sentence obscures the context in which it was said. It is said at a point when the Authority is considering the position once the appellant pleads to a charge: [29] I find that if the applicant pleads guilty he will be fined and released. If he pleads not guilty, he will be granted bail and required to return to court at a later time where, if he is found guilty, he will also be fined. In most cases, bail is granted either on personal surety, or otherwise requires a family member to act as guarantor. The applicant has family in Sri Lanka and there is no information before me that he wouldn't be released on personal surety or that, if required, a family member would be unable to guarantee bail. His representative has submitted that he fears torture or other harm in prison. DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce including for those suspected of offences under the I&E Act. Given this and the likelihood that he will spend no more than a few days in detention before he can be brought before a Magistrate and bailed, I find the prospect that he will be harmed in prison to be remote. The applicant has a history of employment and did not claim any inability to pay the fine. In the circumstances, I find that the imposition of a fine will not amount to serious harm. (footnotes omitted) 76 When the reasons are viewed more generally, the following are revealed: (1) The Authority said that the Sri Lankan government remains sensitive to the potential re-emergence of the LTTE and that in the past this has resulted in Tamils being at risk of routine screening for LTTE connections and possible extended detention (at [24]). (2) The Authority was clearly aware that the representation was not limited to imprisonment: [26] The applicant's representative has submitted that if forced to return to Sri Lanka he will be detained, interrogated, imprisoned on remand, tried convicted and punished for charges related to his illegal departure and that through this process he will be exposed to a real chance of persecution and/or a real risk of significant harm. (3) The Authority accepted that because the appellant departed illegally there would be consequences for him upon his return and that he would be liable to be charged under the I&E Act and arrested at the airport (citing the 2017 DFAT report): [27] I accept that the fact that he departed illegally will have consequences for him on return and that as a person who departed illegally, he is liable to be charged under the I&E Act and arrested at the airport. Returnees are transported to the closest Magistrates Court at the earliest available opportunity after investigations have been completed although they can remain in police custody at the CID airport office for up to 24 hours after arrival, and if a Magistrate is not available before this time (eg because of a weekend or public holiday), may be held at a nearby prison. DFAT has been advised by Sri Lanka's Attorney-General's Department that no returnee who was merely a passenger on a people smuggling boat has been given a custodial sentence; instead, a fine is issued to act as a deterrent towards departing illegally in future and can paid by instalment. In cases where a returnee pleads guilty, they will be fined and released. If they plead not guilty, returnees are immediately granted bail by the magistrate on personal surety or may be required to have a family member act as guarantor, in which case the person may need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail and if they are, they are imposed on a discretionary basis; the person will only need to return to court when the case against them is being heard (or if required to give evidence as a witness in another case). [28] The applicant was a passenger on a people smuggling boat; he does not claim to have been involved in, or accused of, organising or facilitating people smuggling. There is no evidence before me that the penalty or treatment faced by persons charged with illegal departure under the I&E Act, who were passengers on a boat, varies depending upon their ethnicity, religion, status as returning asylum seekers, imputed or actual political opinion. (footnotes omitted) (4) The Authority considered the totality of the treatment that might be experienced upon return: [31] In considering the totality of the treatment that the applicant will experience including being detained and investigated for several hours at the airport, then potentially being detained on remand for a number of days during which he will be held in overcrowded and unsanitary conditions, and having to pay a fine, I find that this treatment does not amount to serious harm. Further, I find that the treatment of the applicant under the I&E Act is not discriminatory conduct but rather the application of a law which applies to all Sri Lankans…. (footnote omitted) (5) The Authority included reference to the risk of being detained (including at the airport and afterwards) in the context of complementary protection, stating: [37] I accept that on return to Sri Lanka the applicant will be subject to a series of administrative processes and identified as an illegal departee and a returning asylum seeker. He is likely therefore, as discussed above, to be investigated and detained for several hours at the airport, and depending on the availability of a magistrate, may be detained for a number of days pending bail for the offence of illegal departure, and fined accordingly. I am not satisfied, however, that this treatment amounts to significant harm. I have found he is not a person of interest to the Sri Lankan authorities and I do not accept there is a real risk of torture or that he will be mistreated while being held and investigated at the airport or in remand, or face a total period of detention of longer than a few days in the worst case scenario. 77 The appellant contends in effect that the Authority did not accord sufficient weight to the country information to which it referred. I do not accept that submission. It did not expressly refer to the prior decisions referred to in the lawyers' submissions but it referred to the 2012 UNHCR report and the 2015 DFAT report. More importantly, it obtained and had regard to the most recent relevant country information by way of the 2017 DFAT report which was of direct relevance. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652 at [20]. 78 I am of the view that the reasons of the Authority read as a whole disclose that it considered relevant country information and that it understood and took into account the appellant's claims as to risk of harm and did not limit its attention to the risk of harm upon imprisonment. To find otherwise would reflect an artificial parsing of the Authority's reasons by placing significant weight on references to 'prison' whilst minimising the relevance of the various other references to the timeline from any arrival in Sri Lanka. The reasons of the Authority are not to be scrutinised 'with an eye keenly attuned to error': Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. That principle applies in this case. 79 Accordingly, no error is disclosed in the decision of the primary judge to reject this ground of review. 80 It follows that I would dismiss ground 3.

Determination 81 The appeal should be upheld on grounds 2A and 2. Orders must be made to allow the appeal and to set aside the Authority's decision and remit the matter to the Authority for decision in accordance with law, and for costs. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.