EEZ18 v Minister for Home Affairs

Before the Authority and the primary judge 7 The appellant' claims were summarised by the Authority as follows (at [11]): • He is a young Tamil male from the north of Sri Lanka, an area formerly controlled by the LTTE [Liberation Tigers of Tamil Eelam]. • His family was displaced during the war several times. • He and his brothers were LTTE members. One of his brothers was a high ranking LTTE member. In 2007 the applicant was trained and worked for the LTTE planting land mines for about one year. • On [date] he was arrested with his brothers and father on suspicion of LTTE involvement while at Menik Farm Camp in Vavuniya. He was released with the assistance of his father but two of his brothers were detained and one of them was sent to a rehabilitation camp. • From [year] he was trained with and commenced working for [an organisation] removing land mines in Mullaithivu [sic]. • In 2012 he was questioned and arrested by the authorities on multiple occasions; they suspected the LTTE had trained him in the use of land mines and he had to quit his job with [the organisation] because of this constant harassment. • In 2012 the authorities went to his home requesting he attend Joseph Camp for questioning which was when he fled Sri Lanka in fear of his safety. • He fears being kidnapped, interrogated for information, arrested, tortured and killed, by the authorities and paramilitary groups in Sri Lanka on suspicion of having LTTE links. He fears being of interest to authorities because of his training with the LTTE in combat and land mines. He fears he will be imputed with LTTE association given his absence form Sri Lanka. He fears being detained at the airport. His details were released in 2014 in a Departmental data breach. He fears he is on a stop or watch list at the airport. He left Sri Lanka illegally and will be a failed asylum seeker. 8 The Authority recorded what the delegate decided in refusing to grant the appellant a protection visa as follows (at [2]): The delegate accepted the applicant had grown up in the Northern Province of Sri Lanka during the war, had been sent to Menik Farm Camp with his family by the authorities at the end of the war and released back to his home village in [year] and had worked as a de-miner for [the organisation] from about [year] to [year]. He did not accept the applicant had been a member of the Liberation Tigers of Tamil Eelam (LTTE), or that he and his family had been harassed on account of his brothers' suspected involvement with the LTTE or his work for [the organisation] and found the applicant did not meet the relevant definition of refugee, did not face a real risk of significant harm and was not a person in respect of whom Australia had protection obligations. 9 Following the delegate's decision and the referral to the Authority, the Refugee Advice & Casework Service made a submission providing additional information regarding the organisation the appellant had worked for and addressing the delegate's reasons. The additional information was a letter from the Deputy Director of the organisation, relevantly confirming that the appellant had been employed by the organisation in Sri Lanka for a period as a "deminer" - that is, involved in the removal of land mines. That letter stated that: He had been trained by our international demining experts to the level of EOD 1 certification, according to [website]. This basic training included mine orientation and identification, using mine detectors, probing and trip wire detection, vegetation clearing, house clearance procedures, battle Area Clearance (BAC), mine marking and basic first aid. His basic training did not include handling of any type of explosives. 10 The submission said of why this new information should be considered: We submit that this information was not previously available to the Applicant as it was only upon receiving the decision handed down by the Department that it became apparent that the Delegate would conclude that the [organisation] would have provided the Applicant with information on how mines operate. We submit that the information is credible personal information that was not previously known and, for the reasons outlined later in these submissions, would have affected the consideration of the Applicant's claims had it been known. We submit that as this was never put to the Applicant as adverse information during the Interview, it was not information that could have been provided to the Department before the decision was made. 11 The submission then addressed how the organisation's letter was said to demonstrate that the appellant had obtained his asserted detailed knowledge of land mines from the LTTE and not from the more limited information available to him from working with the organisation. 12 The Authority addressed the submission and the question of whether or not to consider the organisation's letter as follows (at [4]-[5]): On 2 November 2017 the IAA received a submission from the applicant. To the extent the submission engages in argument with the delegate's decision based on information which was before the delegate I have had regard to these arguments. In part it also restates claims made to the delegate which are already before me. The applicant advised the Department that he had been trained and had worked for the LTTE in land mines and had worked for [an organisation] as a de-miner. When asked how land mines were made he gave a very brief description focussing on what triggered an explosion in a land mine. Enclosed with the submission was a copy of a letter from the Deputy Director of the [organisation] dated after the delegate's decision. By way of explanation the applicant states he was not put on notice during the SHEV interview that the delegate considered it was the [organisation] that trained him in the use of mines, rather than the LTTE. He says the letter from the [organisation] attests to the fact he was only given very basic training in land mines at the [organisation] and that an organisation like [that] would not train its staff on how to make land mines. He also states he was a member of the "Kanini Pirivu" (technology wing) of the LTTE. The letter from the [organisation] and the identity of the LTTE wing he belonged to is new information. I do not consider this new information materially adds anything or is corroborative of his claim he was a member and worked for the LTTE in land mines. The applicant previously claimed that he was in the computer and land mine divisions of the LTTE and for the reasons below I accept he worked as a de-miner for the [organisation] until about [year]. Aside from this the applicant was clearly put on notice in the SHEV interview that the delegate had serious concerns about his claim to have been a member of the LTTE and to have worked for them with land mines. I am not satisfied that exceptional circumstances exist to justify consideration of the new information. 13 The primary judge did not accept that the Authority misconstrued or adopted an unduly narrow meaning of s 473DD in considering the new information, and found that on a fair reading of the reasons, the whole of that provision had been taken into account.

The appeal 14 The Minister's position may be simply stated: there is no invariable obligation on the Authority to consider s 473DD(b), citing AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [14] and [16], and DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22], but to the extent that was required in the circumstances of this particular case, the Authority had done so. This appeal may be determined upon an assessment of whether or not the contrary has been demonstrated, without any present need to explore further the metes and bounds of what was required as to consideration of s 473DD in this case, or more generally. 15 The appellant contends that [5] of the Authority's reasons fail to address s 473DD(b) and thereby prevented a proper assessment of the s 473DD(a) test of exceptional circumstances in relation to the organisation's letter. He submits that the Authority confined its consideration to s 473DD(a) itself, and only incidentally, if at all, considered s 473DD(b). The assessment of whether that is so can best be carried out, in this particular case, by reference to the constituent elements of s 473DD(b). There was no need for the Authority to make any specific reference to paragraph (b) in order to have considered it. It will have been considered if that can be reasonably ascertained as having in substance taken place. 16 The terms of s 474DD(b)(i) direct attention to whether the Authority is satisfied that the new information was not and could not have been provided to the Minister (and thus the delegate) before the decision was made to refuse the grant of a protection visa. As to the first limb, by the Authority stating in [5] "Enclosed with the submission was a copy of a letter from the Deputy Director of the [organisation] dated after the delegate's decision", it was clearly satisfied that the information was not in fact provided to the Minister: there was no other apparent reason for the Authority to refer to the timing of the letter. 17 As to the second limb in s 473DD(b)(i), by the Authority in [5] acknowledging the reason given for not obtaining the organisation's letter ("By way of explanation the applicant states he was not put on notice during the SHEV interview that the delegate considered it was the [organisation] that trained him in the use of mines, rather than the LTTE.") and by concluding on that topic that "the applicant was clearly put on notice in the SHEV interview that the delegate had serious concerns about his claim to have been a member of the LTTE and to have worked for them with land mines", the Authority was clearly not satisfied that information on this topic could not have been obtained in the period between the SHEV interview on 29 August 2017 and the delegate's decision made on 3 October 2017. 18 The terms of s 474DD(b)(ii) direct attention to whether the Authority is satisfied that the new information, cumulatively: (1) is credible personal information; (2) which was not previously known (to the Minister: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at [33], adopted at [78] and [100]); and (3) had it been known, it may have affected the consideration of the appellant's claims. 19 As to the first part of s 474DD(b)(ii), the appellant submits that the Authority did not direct its mind to whether the organisation's letter constituted credible personal information; that the Authority did not inquire into that issue. That submission cannot be sustained when [5] of the Authority's reasons are read fairly, in the context of [4], and not even by resort to a beneficial reading as is sometimes required. The Authority at [4] refers to the submission, which states in the passage reproduced above at [10] that the letter is credible personal information, and there is nothing to indicate that the Authority at [5] took any issue with that characterisation. To the contrary, it is described as being a copy of a letter from the Deputy Director of the organisation, without any doubt being expressed as to its provenance or authenticity. Similarly, it is plain that the organisation's letter was about the appellant's employment by, and role at, that organisation. It was therefore clear that the letter constituted personal information about him. There is no reason to doubt that the Authority considered the organisation's letter to be credible personal information about the appellant. 20 As to the second part of s 474DD(b)(ii), the analysis of the first limb of s 474DD(b)(i) above makes it clear that the Authority was aware that the organisation's letter had come into existence after the delegate's decision and to that extent it could not have been, and therefore was not, previously known by the delegate and thus the Minister. 21 As to the third part of s 474DD(b)(ii), the Authority relevantly stated as part of [5]: I do not consider this new information materially adds anything or is corroborative of his claim he was a member and worked for the LTTE in land mines. The applicant previously claimed that he was in the computer and land mine divisions of the LTTE and for the reasons below I accept he worked as a de-miner for the [organisation] until about [year]. 22 The appellant apparently initially submitted that by those two sentences, the Authority failed to consider how the organisation's letter may have affected the consideration of his claims. As his argument evolved at the appeal hearing the appellant accepted that there had been an assessment of the organisation's letter and to that extent the Authority did consider how it affected his claims. He submits that the Authority, in effect, misunderstood what was required by this aspect of s 474DD(b)(ii) and thereby imposed too high a standard to be met before the organisation's letter would be able to be considered. That is said to be because: (1) the underlying issue of his explosives awareness or knowledge was something that may have affected his claims; (2) by reaching the positive conclusion that the letter did not materially add anything and was not corroborative of his claim he was a member and worked for the LTTE in land mines, the lower threshold of whether it may have, in the sense of merely could have, affected the consideration of his claims was, in effect, bypassed; (3) this error in approach was tantamount to not considering the organisation's letter at all, in the sense of considering it in the correct way. Understood in the context of the rest of the material before the Authority, it may well have been the case that the appellant had a very good basis for the acceptance of his LTTE involvement because, if it was accepted that he knew a good deal about explosives, in connection with landmines, he could not have learnt that from the organisation if the truth of the letter is accepted as being corroborative of that; and (4) the Tribunal thereby erred in a jurisdictional way in depriving him of the benefit of the organisation's letter. 23 There are a number of difficulties with this argument. First and foremost, it was open to the Authority to find that the organisation's letter did not in fact materially add anything, or was not in fact corroborative of his claim that he was a member and worked on land mines for the LTTE. If the Tribunal was properly able to determine that the letter did not in fact do either of those things, necessarily the Tribunal was determining that the letter was not capable of doing so. The Authority was not conducting a two stage exercise akin to determining the admissibility of evidence as a tribunal of law at the lower threshold of capability, ahead of consideration of such evidence as a tribunal of fact as to whether or not it proves, or helps to prove, a fact in issue, but rather giving effect to a statutory restriction on receiving material that was not before the delegate, and for that purpose assessing its possible use. There was nothing wrong with the Authority forming a view that this particular letter did not, and therefore necessarily may not have, affected the consideration of the appellant's claims. This is not to state any abstract test, applicable in all circumstances, but rather to examine whether it was open to the Tribunal to conduct the necessary assessment in this way, in this case, on this particular new information, and to conclude that it was so open. 24 Secondly, there was no apparent error in any event in the Authority's assessment. The organisation's letter indicated the limits on the knowledge that the appellant could have acquired about mines from doing its training. It did not say anything about his claim that he was a member of the LTTE or that he had worked for the LTTE in relation to land mines, so it could not assist him in relation to those claims. It could not, as the Authority found, materially add anything to, or be corroborative of his claim to have been a member of the LTTE, or to have worked on land mines for the LTTE. The letter had nothing to do with the LTTE. 25 For completeness, and in support of the last preceding conclusion, the Authority, independently of the organisation's letter, made the following findings (as part of [24], footnote omitted): While the applicant was able to provide some brief detail about land mines when the delegate questioned him on this in the SHEV interview I am not satisfied this evidences that he had been involved in building and laying them. I consider his knowledge of how a land mine is triggered would have been imparted to him as part of his training and work as a de-miner with the [organisation] not because he was trained and worked with the LTTE. He has also claimed to have worked in the "computer" division of the LTTE but has provided no evidence about his work in this area. In the SHEV interview the applicant said he obtained the [organisation] job in part because of his training with the LTTE indicating he had told them about this experience. Given the late raising of the claim, lack of detail, internal inconsistencies, his release from Menik Farm Camp by the authorities in [year] and that he was not arrested subsequently despite harassment by authorities and the country information before me indicating he would have undergone a security screening before being accepted to work as a de-miner for [organisation] I do not accept the applicant was an LTTE member or that the LTTE trained the applicant on how to use land mines and in combat or that he worked for the LTTE from 2007 to 2008. Based on his evidence, including an [organisation] identity card, I accept he was trained by and worked for the [organisation] until [year]. I place little weight on a letter dated 17 January 2013 from an attorney-at-law who claims to know the applicant, given the writer does not claim to have had firsthand experience of the incidents detailed in that letter. 26 It is difficult to see how the organisation's letter could have made any difference at all to that ultimate assessment. It follows that even if there had been an error in relation to the s 73DD(b)(ii) assessment of the organisation's letter, it would not have been a jurisdictional error because that letter could not have made any difference to the result: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [24]-[27]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [45], but cf [90]. 27 The appellant has not established that there was any failure to consider or correctly apply s 473DD by the Authority, and as a result has not established any jurisdictional error, nor error on the part of the primary judge in failing to detect such an error. Even if there had been some error, it would not have been jurisdictional in any event. 28 The appeal must therefore be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.