EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

2.1 The criteria for the grant of the safe haven (temporary protection) visa 7 The protection visa for which Mr [EGY] applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for Mr [EGY] to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act. 8 Turning first to the refugee criterion, at the relevant time s 36(2)(a) of the Act provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations "because the person is a refugee". A person is a "refugee" for the purposes of the Act if the person (relevantly) "is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country" (s 5H). In turn, s 5J(1) of the Act provided that: For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. 9 A determination of whether a subjective fear is objectively "well-founded" requires the Tribunal to assess what will occur in the future. A fear is "well-founded" when there is "a real and substantial basis for it" even though the chance of the fear eventuating is less than 50 per cent (often described as a "real chance"): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded "if it is merely assumed or if it is mere speculation": ibid. 10 In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm". The phrase "significant harm" is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. 11 A determination of whether there is a real risk for the purposes of s 36(2)(aa) requires a consideration of whether there is a "real chance" that an applicant will suffer "significant harm" as defined if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). The level of risk of harm under s 36(2)(aa) is therefore the same as the level of risk required under s 36(2)(a) of the Act. 12 It follows that, even though not all of his claims were accepted, there is no suggestion that the IAA did not accept that Mr [EGY] subjectively feared persecution or significant harm. Given his tragic history of forced recruitment as a child soldier and the situation in Sri Lanka at the time he left in 2012, it would be perfectly understandable for him subjectively to fear harm if returned. However as I explain below, the question on which the IAA's decision ultimately turned was whether objectively speaking and having regard to any changes in the situation in Sri Lanka after Mr [EGY] had left, his fears were well founded in the sense I have explained.

2.2 The appellant's claims and the decision of the delegate 13 As earlier explained, Mr [EGY] is a citizen of Sri Lanka who arrived in Australia in 2012 as an unauthorised maritime arrival and claimed to fear harm from the Sri Lankan government, the Army, and Central Intelligence Department (CID) by reason of his status as a young Tamil male with LTTE connections and/or as a person who would be imputed with LTTE connections: statutory declaration of Mr [EGY] attached to his visa application (AB71). 14 The delegate refused the application for the safe haven visa on 20 April 2018 on the ground that he was satisfied that Mr [EGY] did not have a well-founded fear of persecution or significant harm if returned to Sri Lanka (AB128).

2.3 The referral of the delegate's decision for review by the IAA under Part 7AA of the Migration Act 15 It was not in issue that the delegate's decision was a fast track decision for the purposes of Part 7AA of the Act (comprising ss 473BA-473JF). The Fast Track Assessment Process (fast track process) provides a mechanism for limited merits review by the IAA in respect of certain adverse protection visa decisions. As the simplified outline of Pt 7AA in s 473BA explains, the fast track process provides: … a limited form of review of certain decisions … to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. 16 The Minister is required to refer a fast track reviewable decision (as defined in s 473BB) to the IAA "as soon as reasonably practicable after the decision is made" (s 473CA). At the same time as the referral is made (or as soon as reasonably practicable thereafter), the Secretary must give to the IAA "review material" in respect of the referred decision (s 473CB). The review material must include a copy of the primary decision-maker's written reasons for the decision and any material provided to the primary decision-maker by the referred applicant, together with "[a]ny other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review" (subs 473CB(1)(a)-(c)). 17 In accordance with s 473CA, the decision of the delegate was referred to the IAA for review: see the Department's letter dated 20 April 2018 advising Mr [EGY] that his application had been refused at AB125 and the letter from the IAA to Mr [EGY] dated 27 April 2018 acknowledging the referral and inviting submissions at AB146. 18 Mr [EGY] did not put any new information before the IAA although the IAA obtained an updated country information report prepared by the Department of Foreign Affairs and Trade (DFAT) entitled "DFAT Country Information Report - Sri Lanka" dated 23 May 2018, CIS7B8939411064 (the DFAT 2018 Report): IAA decision and reasons dated 2 August 2018 at AB151 (IAA reasons) at [4].

2.4 The decision of the IAA 19 The IAA accepted certain of Mr [EGY]'s claims including that: (1) his father had assisted the LTTE with food and as a labourer (IAA reasons at [9]); (2) his brother, Mr [C], was a member of the LTTE and had disappeared around 2008 (at [17]); (3) Mr [EGY] was forcibly recruited by the LTTE as a child soldier in 2008, given some training, had taken part in a battle in a non-combative role, and had escaped after he was injured (at [18]-[19]); (4) after the war, Mr [EGY] and his family was moved to a Sri Lankan Army (SLA) Internally Displaced Persons (IDP) camp where they were questioned and eventually released in 2010 (at [21]); (5) after the war and their return from the IDP camp the CID may have visited and questioned Mr [EGY]'s family from time to time (at [23]); and (6) Mr [EGY] left Sri Lanka using a photo substituted Sri Lankan passport in another man's name, before travelling from Malaysia to Australia by boat in 2012 (at [29]-[30]). 20 However, the IAA did not accept certain other aspects of Mr [EGY]'s claims given inconsistencies in his claims, the IAA's assessment that certain claims were not plausible, and the fact that some of the claims were not made until late in the process of providing information in support of his visa application. In particular, the IAA found that: (1) Mr [EGY]'s father worked as a casual labourer supporting the LTTE when required, and had not joined as an LTTE cadre or member (IAA reasons at [9]); (2) his father had not been shot at by the Eelam People's Democratic Party, finding that this was "an embellishment to enhance his claims" (IAA reasons at [15]); (3) Mr [EGY] and his father were not perceived to be a threat because of their LTTE links but rather, in common with the majority of the Tamil population in the north and east at the time, they were questioned because the authorities maintained a level of suspicion of all Tamil citizens in those locations (at [22]-[26]); (4) Mr [EGY] and his family were questioned in the IDP camp but that questioning was not targeted at them and was only the questioning which all Tamil refugees would have faced in the camp in the immediate aftermath of the conflict (at [20]); (5) [Mr EGY] did not have any ongoing connection with extended family members who may or may not be LTTE members (at [32]); (6) [Mr EGY] and his father had not been taken away by the CID; nor had [Mr EGY] gone into hiding (at [25]-[27]); and (7) the visits to Mr [EGY]'s family in the years since his departure "constitute nothing more than examples of the continued suspicion that attaches to the Tamil community, albeit reduced since the election of the current government in 2015" (at [31]). 21 The IAA then turned to consider Mr [EGY]'s claim for protection as a refugee under s 36(2)(a) of the Act. 22 First, the IAA considered whether Mr [EGY] had a well-founded fear of persecution by reason of his personal links to the LTTE. In this regard, the IAA found that country information indicated "that there has been a change in the situation in Sri Lanka since the applicant's departure in late 2012 and particularly since the election of the Sirisena government in 2015 with significant reforms implemented in governance and accountability" (at [37]). The IAA discussed country information from a range of different sources which indicated that different organisations had different views about the risks of harm faced by the Tamil population and those with real or perceived personal or familial connections to the LTTE in Sri Lanka, giving particular weight to a report by the UK Home Office in 2017 which it said reflected "a comprehensive examination of the current situation in Sri Lanka" (at [37]-[40]). Based on the country information and given its findings that Mr [EGY] was not wanted by the authorities and had no adverse security profile when he left Sri Lanka in 2012 (at [36] and [41]), the IAA found that it did not consider that "in contemporary Sri Lanka the applicant would face any adverse attention from the authorities or there is a real chance the applicant will be harmed on his return to Sri Lanka by reason of his ethnicity, origin in the Northern Province [sic], his personal links to the LTTE" (IAA reasons at [42]). 23 Secondly, with respect to Mr [EGY]'s claims that he would be identified by the CID or neighbours if returned home and be immediately targeted for adverse attention, the IAA found at [43] that: The applicant left Sri Lanka over five years ago and in that time his father or his siblings have continued to live in their home area. Neither his father nor any of his siblings has been arrested or detained on account of their familial relationship with the applicant and with the exception of some visits to the house by local CID officers from time to time over the past five years, there is nothing before me to indicate that the Sri Lankan authorities have any ongoing interest in the applicant or his family beyond the routine questioning that arises from low-level suspicions of the Tamil community in the north and east [citing the DFAT 2018 report]. 24 The IAA also accepted on the basis of the 2018 DFAT report that, as a returning asylum seeker, Mr [EGY] "may be subject to a period of surveillance from the Sri Lankan authorities and social stigma on return to his home country in the north of the country. I am not satisfied however that such monitoring and social stigma from his home community would amount to serious harm in this case" (at [44]). In reaching that finding, the IAA acknowledged that there were a number of reports in recent years of failed asylum seekers being mistreated on return to Sri Lanka including calls for deportations of failed asylum seekers to be halted, but noted that these reports "are now somewhat dated" (at [44]). As such it is apparent that the IAA acknowledged the existence of conflicting reports regarding the treatment of failed asylum seekers to Sri Lanka but resolved that conflict by relying upon the more recent consideration of the risks by the Department of Foreign Affairs and Trade. 25 Thirdly, the IAA accepted that Mr [EGY] departed Sri Lanka illegally using a falsified Sri Lankan passport, that on return he may be identified as a person who left Sri Lanka illegally in contravention of the Immigrants and Emigrants Act 1949 (the I&E Act), and that, based on the 2018 DFAT report, he may be considered to have committed an offence (at [45]). However, it found that the likely processes to which he would be subjected as a result would be "standard procedures" to which all returnees are subject "regardless of ethnicity and religion" and, based on the 2018 DFAT report, found that he would not be subject to mistreatment during processing at the airport (at [45]). The IAA also found based on the 2018 DFAT report that it was not satisfied that the treatment Mr [EGY] may experience "such as questioning, being held in an airport holding cell and/or a fine and any bail conditions and associated costs amounts to systematic and discriminatory conduct" (at [49]). The IAA further found that the country information indicated that the I&E Act is a law of general application that applies to all Sri Lankan citizens and is not discriminatory on its face or in its application or enforcement (at [49]). 26 The IAA concluded that Mr [EGY] did not satisfy the definition of a refugee in s 5H(1) and therefore, the refugees criterion in s 36(2)(a) for the grant of the safe haven visa. 27 The IAA also found that it was not satisfied that the complementary protection criterion in s 36(2)(a) was met. First the IAA found that: 53. I have concluded that the applicant does not face a real chance of harm because he is a Tamil Christian with family in the north of Sri Lanka who had links to the LTTE. As "real chance" and "real risk" involve the same standard, I am also not satisfied he faces a real risk of harm, including significant harm, for these reasons. 28 Secondly, the IAA found that the treatment to which Mr [EGY] may be subjected as a returning asylum seeker or a person who departed Sri Lanka illegally would not constitute "significant harm" as defined in s 36(2A) for the purposes of s 36(2)(aa) (at [54]-[55]).

2.1 The FCC's decision 29 Leave was granted by the primary judge to Mr [EGY] to rely on an amended application for the judicial review on 18 April 2016, although Mr [EGY] ultimately did not press ground 3 of the amended application (FCC reasons at [19]). 30 Ground 1 of the application for judicial review alleged that the IAA had failed to consider claims or evidence as follows: The second respondent (the IAA) failed to conduct its review pursuant to s 473CC of the Migration Act, according to law. Particulars (a) Failure to consider information that was before it, pursuant to s.473DB of the Migration Act, to the effect that: (i) failure to consider country information stated in the submission to the Delegate (CB 110-123). (ii) Failure to consider the UNHCR eligibility guideline which was considered by the delegate (CB 135) (b) The second respondent failed to consider the applicant's claims cumulatively. (e) Failure to consider claims, or integers of claims. (i) Applicant's representative made submission stating that there is a real risk that the applicant will come to the attention of the authorities during these processes due to his real and imputed political opinion of being anti-government, based upon his involvement with the LTTE and pro-Tamil actions in Australia (CB 120). This claim was made in relation to the airport process as a returned failed asylum seeker. However the IAA did not consider this claim in relation to his illegal departure findings; paragraph 45 to 49 (CB 163-164) (ii) IAA failed to make finding about the claim in relation to the applicant's brother's LTTE membership, despite the finding of the father's and extended family member's LTTE involvement.. 31 The primary judge rejected ground 1 for the following reasons: 54. In my view, all of the applicant's complaints in relation to these grounds struggle to rise above a dispute over the merits of the Authority's reasoning. As the Minister points out in his submissions, the applicant may emphatically disagree with that reasoning, or the outcome of it, but that does not establish jurisdictional error. 55. I accept the Minister's submissions that the Authority did in fact consider the applicant's claims, and the submissions made in support of them, including the country information he relied upon. However, the Authority gave greater weight to other sources of country information which did not support the applicant's claims. In particular, it is clear that the UNHCR Guidelines were considered by the Authority, as submitted by the Minister. 56. Further, I accept the Minister's submission that the applicant's claims were considered both individually and cumulatively on a fair reading of the Authority decision. While an assessment of country information is not immune from an examination for jurisdictional error, in general terms, the choice of country information, and the weight to be afforded to it, are matters within the decisional freedom accorded to the Authority. 57. I see no error in the Authority's analysis, in particular that reproduced at [36]-[40]. Further, at [14] the Authority expressly referred to the applicant's submission provided to the delegate after the SHEV interview. 32 The primary judge also rejected ground 2 of the amended application for the judicial review. Ground 2 read: The Second respondent incorrectly or wrongly considered the real chance test and thereby committed a jurisdictional error. Particulars a) The Second respondent accepted the applicant's LTTE involvement (personal and family) but wrongly concluded that his fear of persecution is not well founded. Country information support a favourable conclusion. b) The Second respondent accepted the applicant's involvement with the LTTE, which squally (sic) falls within the UNHCR guidelines as risk factor. Second respondent failed to consider the real chance of persecution in the foreseeable future and/or wrongly considered the real chance test paragraph 42 CB 162. c) The Second respondent applied probability test. 33 In dismissing ground 2, the primary judge held that: 86. Half buried in the hyperbole of the applicant's submissions concerning this ground is a real issue: that is, whether the Authority limited its consideration to present circumstances in Sri Lanka and thus failed to make the necessary forward looking assessment of the risk of serious or significant harm facing the applicant. At [42] the Authority stated: Based upon the country information contained in the referred materials before me, I do not consider that in contemporary Sri Lanka the applicant would face any adverse attention from the authorities or there is a real chance the applicant will be harmed on his return to Sri Lanka by reason of his ethnicity, origin in the Northern Province, his personal links to the LTTE. 87. It is apparent from that paragraph that the Authority expressed itself in the present. As against that, it is clear from [34] and [35] that the Authority understood the task that it had to perform. 88. I have already found that the Authority considered the applicant's claims, both singularly and cumulatively. I accept from the Authority decision, including the country information references at CB 163, that the Authority was bringing to bear on its consideration the most up to date country information. 89. The Authority is not required to speculate about the unknown future. Plainly, the Authority took the view that circumstances in Sri Lanka were improving, especially after the election of the Sirisena government. The applicant maintains that that improvement is far from guaranteed into the future and that circumstances may revert to the former, less favourable state. The Authority is entitled to take the view, where the future is unknown, that the best available guide is the present. Provided that the Authority engages with the available material, including that proferred by an applicant, it is entitled to make an assessment of present circumstances and bring that assessment to bear in its application of the real chance test. 90. On a fair reading of the Authority decision, read as a whole, I am satisfied that that is what the Authority did. 34 The primary judge otherwise agreed with the Minister's submissions in relation to Ground 2, which his Honour set out at [80]-[85].

3.1 The issues on the appeal 35 In each of the remaining grounds of appeal, namely, grounds 7, 8 and 9, the appellant contends that the FCC erred "and committed jurisdictional error". However, this Court is seized of an appeal from the FCC. As such, as Mr [EGY]'s counsel accepted at the hearing, it is unnecessary for Mr [EGY] to establish that the FCC fell into jurisdictional error but merely that the FCC made an appellable error (which of its nature would embrace any jurisdictional error). The more limited question of whether the FCC fell into jurisdictional error would be relevant only if this were an application for judicial review of the FCC's decision under s 39B of the Judiciary Act 1903 (Cth). Further and in any event, neither of the grounds of appeal could conceivably establish jurisdictional error on the part of the FCC: see e.g. CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 at [46]-[48] (the Court); DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; (2018) 264 FCR 454 (DMI16). 36 The position with respect to the IAA is, of course, different. It was necessary for Mr [EGY] to establish on appeal that the FCC erred in failing to hold that the IAA fell into jurisdictional error. The jurisdiction of an administrative decision-maker such as the IAA is narrower than that of an inferior court and, therefore, an error may be jurisdictional when committed by the IAA which would not be jurisdictional if committed in the judicial context: DMI16 at [39]-[41] (the Court). 37 In this regard, it is also important to bear in mind the limits of the FCC's jurisdiction in determining the application for judicial review to interfere with a decision of the Tribunal. The jurisdiction conferred on the FCC is confined to deciding whether the IAA's decision was made lawfully under the Act, that is, whether the IAA's decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the Federal Circuit Court wrongly held that there was no jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ) and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court). The IAA would make a jurisdictional error if, for example, it failed to correctly construe and consider a visa applicant's claims and their component integers: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ) (Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] (Black CJ, French and Selway JJ). The IAA would also make a jurisdictional error if it made a decision which was irrational or illogical or lacking in a probative basis: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. 38 However, neither this Court nor the Federal Circuit Court has jurisdiction to grant an applicant a visa, to consider whether she or he satisfies the criteria for the grant of the visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the FCC agrees with the IAA's decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have taken a different view of the evidence and reached a different decision: see also FCC reasons at [54].

3.2 Did the IAA fail to consider country information so as to fall into jurisdictional error (ground 7)?

1.1.1 The issue 39 By ground 7 of the amended notice of appeal, Mr [EGY] contends that: The Federal Circuit Court erred and committed a jurisdictional error when it did not uphold Ground 1(a)(i) of the Amended Application filed 23/04/2019 that the IAA failed to conduct its review pursuant to S 473CC of the Migration Act, in that it failed to consider information before it, pursuant to S 473DB of the Migration Act, to the effect that: (i) failure to consider country information stated in the submission to the Delegate (CB110-123). Particulars i. The IAA had before it the Submissions from RACS [AB110] - [AB123] which referred to a number of publications footnoted throughout the Submissions; ii. The IAA failed to mention in its decision documents referred to at footnotes: 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26, 30, 31, 32, 33, 34; iii. The IAA mentioned other publications and found "Based upon the country information contained in the referred materials before me, I do not consider that in contemporary Sri Lanka the applicant would face any adverse attention from the authorities or there is a real chance the applicant will be harmed on his return to Sri Lanka by reason of his ethnicity, origin from the Northern Province, his personal links to the LTTE." [AB162]; iv. The 'country information contained in the referred materials before me' did not include those at ii above; v. The Federal Circuit Court dealt with this ground at [AB229] to [AB230], accepting the Minister's submissions that the Authority did in fact consider the applicant's claims, the submissions made in support of them, including the country information he relied upon. [AB230]; vi. The Federal Circuit Court stated "… these grounds [which included this ground] struggle to rise above a dispute over the merits of the Authority's reasoning' [AB230]; vii. In coming to that decision, the Federal Circuit Court failed to understand that the IAA did not consider publications at ii above that were footnoted in the Submissions, and thereby failed to take into account relevant matters, and/or thereby came to a conclusion that was unreasonable and so committed a jurisdictional error. 40 The documents referred to in particular (ii) of ground 7 were cited in footnotes in the detailed submission prepared by the Refugee Advice and Casework Service dated 13 March 2018 (the RACS submission) on behalf of Mr [EGY] (AB110-123). These documents spanned articles from various media outlets (CCN, Associated Press (online), the New York Times, Tamilnet.com, and the Guardian) published between 2016 to 2018, as well as country information from international organisations and other bodies namely: (1) The UN Human Rights Council, Report of the Special Rapporteur on Minority Issues on her Mission to Sri Lanka - Note by the Secretariat (31 January 2017) (FN 12); (2) Human Rights Watch, Sri Lanka: Repealed Draconian Security Law (29 January 2018) (FN13) and World Report 2015 (2015) (FN 30 and 31); (3) UN Committee Against Torture (30 November 2016), "Committee Against Torture's Concluding Observations on the fifth periodic report on Sri Lanka", 59th sess, UN Doc CAT/C/LKA/CO/5 (FN 14, 23 and 24); (4) UN News Service, UN rights expert warns torture routinely used against Sri Lankan security suspects (18 July 2017) (FN 18); (5) International Crisis Group (ICG), Sri Lanka's Conflict-Affected Women: Dealing with the Legacy of War, 28 July 2017, Asia Report No 289 (FN 19); and (6) Asylum Research Consultancy (ARC, "Sri Lanka: (1) Information on Tamils who have returned (voluntarily or forced) to Sri Lanka since August 2014 and who were subjected to detention and/or torture and/or ill-treatment; (4) Any information on recent arrest/detention/ill-treatment/torture of Tamils within Sri Lanka and on what grounds since August 2014" (11 March 2016) (FN 32). 41 I note that at the hearing, the appellant withdrew the reference to footnote 9 in particular (ii) to ground 7.

1.1.2 The appellant's submissions 42 Mr [EGY]'s counsel identified the following sentence at [42] of the IAA's decision as the "critical sentence" the subject of the challenge in ground 7, namely: Based upon the country information contained in the referred materials before me, I do not consider that in contemporary Sri Lanka the applicant would face any adverse attention from the authorities or there is a real chance the applicant will be harmed on his return to Sri Lanka by reason of his ethnicity, origin in the Northern Province, his personal links to the LTTE. (emphasis added) 43 The appellant submitted that the country information in the "referred material" included the references to country information contained in the footnotes to the RACS submission but that the country information in the footnotes identified at particular (ii) was not referred to in the IAA's decision. As such, the appellant submitted that the FCC should have found that that country information had not been taken into account by the IAA. In this regard, the appellant accepted that it was not incumbent upon the IAA to set out all of the material before it "chapter and verse". However, given the volume of country information relied upon by the appellant in question and the fact that that material strongly contradicted the situation in Sri Lanka as portrayed in the 2018 DFAT Report, it followed in his submission that the IAA had failed to consider relevant information or failed to properly review the delegate's decision. As such, he submitted that the primary judge erred in failing to hold that the IAA had fallen into jurisdictional error.

1.1.3 Relevant principles 44 The relevant principles may be summarised briefly as follows. 45 First, the burden lay upon the applicant to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). 46 Secondly, "the question of whether the decision-maker in question has failed to consider a contention which may have been dispositive of the outcome will turn upon the construction of the particular reasons read in the light of their statutory context": BYA v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 at [45]. In this regard, s 473EA(1) of the Act provides that the IAA must make a written statement that relevantly: (a) sets out the decision of the Authority on the review; and (b) sets out the reasons for the decision; … 47 In turn, a statement of reasons given under s 473EA must comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth) (AIA): BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [45]-[49]; see also Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [74]. Section 25D requires that "the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based" (emphasis added). As such, the position with respect to the drawing of inferences where the Tribunal fails to mention a matter in reasons produced in compliance with s 430 of the Act applies by analogy to the drawing of inferences in the context of reasons produced in compliance with s 473EA(1). In this regard, Gleeson CJ held in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) that: 5. When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question. (emphasis added) 48 As such, Gleeson CJ held that the requirement is for the Tribunal to set out its findings on those questions of facts which it regarded subjectively as material, as opposed to those which a Court on judicial review might regard as objectively material: Yusuf at [9]-[10]. The reasoning of McHugh, Gummow and Hayne JJ in Yusuf at [68]-[69] is to similar effect. 49 Thus, as Perram J observed in SZTMD v Minister for Immigration and Border Protection [2105] FCA 150; (2015) 150 ALD 34 at [20], "there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal's views on relevance which matter, not those of this Court" (quoted with approval in Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 (HSKJ) at [44] (the Court)).

1.1.4 No inference can be drawn that the IAA did not have regard to the country information in question 50 It follows from these principles that the absence of any reference in the IAA's written statement of reasons to the country information in question does not of itself give rise to an inference that the IAA failed to consider that information. To the contrary, the effect of s 473EA(1) is that "the Court is entitled to infer that a matter not mentioned in the Tribunal's reasons was not considered by it to be material" (HSKJ at [44] (the Court)) (by analogy). Other considerations may, of course, displace that inference: HSKJ at [43]-[47] (the Court). However, there is nothing to that effect in the present case for the following reasons. 51 First, as the Commonwealth submitted, at [42] the IAA expressed the conclusion which it had reached based on the country information "in the referred materials before me". In so finding the IAA was plainly conveying that it had reached that conclusion having considered all of the country information in the materials given to it by the Secretary under s 473CB of the Act which included that contained in the RACS submission. However, this did not mean that the IAA had to expressly set out its consideration of each item of country information in the RACS submission. In line with the principles set out above, it was incumbent on the IAA to refer only to those matters which it subjectively considered to be material. 52 Secondly, it was not in dispute that the IAA in fact had regard to the RACS submission. The IAA expressly referred to the RACS submission at [14] of its reasons. The IAA also stated that it had had regard among other things to the country information in the referred material (at [42]) and discussed some of the country information which had been included in the RACS submission. As such, it could not be said that the IAA had overlooked the RACS submission or the country information referred to in the submission. 53 Thirdly, it is well established that "the choice of country information, the use made of it, and the weight to be accorded to it is entirely a matter for the merits review decision-maker": EIC18 v Minister for Home Affairs [2020] FCA 370 at [8(a)] (Davies J), citing NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13] (the Court). In this regard, as the Minister submitted, the fact that the IAA's obligation is to "review a fast track reviewable decision … by considering the review material provided" does not alter the nature of the IAA's task under s 473DB, namely, to perform "a de novo consideration of the merits of the decision referred to it": Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17] (Gageler, Keane and Nettle JJ). Nor as the Minister also submitted was the IAA obliged in performing that task, to select the same country information as the delegate, or to accept Mr [EGY]'s claims uncritically or the country information cited in the RACS submission: see e.g. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; (1994) 52 FCR 437 at 451. 54 Fourthly, the IAA engaged with all of the issues raised by the country information in the RACS submission in relation to the question of Mr [EGY]'s risk profile for Mr [EGY] if he were returned. For example, RACS submitted at [3.5] of its submission that the "current political and security situation in Sri Lanka is dire" and there is a rise of nationalism which "may lead to anti-Tamil and anti-LTTE violence against imputed LTTE supporters." (AB113). While the IAA did not refer expressly to the country information cited in the footnotes in support of the submission at [3.5], it expressly considered whether and how the political situation in Sri Lanka had changed, weighing and contrasting the conflicting reports, before concluding at [42] that Mr [EGY]'s profile was not such that he would face a real risk of harm if returned: see above at [22]. Similarly, at [44] of its reasons the IAA considered differing reports as to the treatment of failed asylum seekers who returned to Sri Lanka and preferred the 2018 DFAT report on the ground that those reports which described mistreatment "are now somewhat dated". As such, it gave a logical and rational explanation for preferring the DFAT report over earlier reports: see above at [24]. 55 In those circumstances, I agree with the Minister's submission that the proper inference to be drawn is that the IAA did not overlook or fail to consider any of the country information referred to in the RACS submission. Rather as the primary judge held, the IAA "gave greater weight to other sources of country information which did not support the applicant's claims" (at [55]). As such, ultimately, as the primary judge also found, the appellant's submissions reduced to a dispute over the merits of the IAA's reasoning (FCC reasons at [54]).

3.1 Did the IAA fall into jurisdictional error in failing to apply the risk profiles in the UNHCR 2012 Guidelines (ground 8)?

1.1.5 The issues 56 Ground 8 of the amended notice of appeal contends that: The Federal Circuit Court erred and committed a jurisdictional error when it did not uphold Ground 1 (a)(ii) of the Amended Application filed 23/04/2019 that the IAA failed to conduct its review pursuant to S 473CC of the Migration Act, in that it failed to consider information before it, pursuant to S 473DB of the Migration Act, to the effect that (ii) Failure to consider the UNHCR eligibility guideline which was considered by the Delegate (CB135). Particulars i. The Delegate stated at [AB135] "I do not consider the nature of his father's support for the movement to represent one of the risk profiles highlighted by the UNHCR in their 2012 guidelines. As a result the applicant also does not fit into one of the risk profiles highlighted by the UNHCR." ii. Accordingly the Delegate was aware of the existence of risk profiles contained within the UNHCR 2012 guidelines; iii. The IAA had before it the Delegate's decision: iv. The Federal Circuit Court dealt with this ground at [AB229] to [AB230], accepting the Minister's submissions that the Authority did in fact consider the applicant's claims, the submissions made in support of them, including the country information he relied upon and erroneously stated: "In particular, it is clear that the UNHCR Guidelines were considered by the Authority, as submitted by the Minister:' [AB230]: v. While the IAA did consider the UNHCR Guidelines, the consideration did not touch upon nor relate to 'risk profiles highlighted by the UNHCR'; vi. The Federal Circuit Court stated ''…these grounds [which included this ground] struggle to rise above a dispute over the merits of the Authority's reasoning.' [AB230]; vii. In coming to that decision, the Federal Circuit Court failed to understand that the IAA did not consider the publication UNHCR Guidelines nor the risk profiles therein, that was specifically referred to by the Delegate, and thereby failed to take into account a relevant matter, and/or thereby came to a conclusion that was unreasonable and so committed a jurisdictional error.

1.1.6 The appellant's submissions 57 In support of ground 8, the appellant submitted that the IAA erred in failing to consider the United Nations High Commissioner for Refugees Eligibility Guidelines of Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012 (HCR/EG/LKA/12/04) (UNHCR Guidelines). While not included in the evidence before the primary judge, it was not in dispute that the UNHCR Guidelines were before the IAA and a copy was received in evidence on the appeal. 58 The appellant relied upon the following passage from the UNHCR Guidelines at page 27: … previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, on the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or "cadres"; 3) Former LTTE combatants or "cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons within the above profiles. 59 The appellant's counsel submitted that Mr [EGY] and his brother clearly fell within category two of the risk profiles identified by the UNHCR in this because Mr [EGY] had been a combatant and trained with the LTTE and his brother, Mr [C], had joined the LTTE. He also submitted that Mr [EGY]'s father plainly fell within category four. In addition, he submitted that Mr [EGY] also fell within category six by reason of his family links with the LTTE. As such, the appellant submitted that the IAA ought to have considered whether Mr [EGY], his brother and his father fell within one of these categories of those at risk of harm and that the Court should infer from the IAA's failure to do so expressly that it did not do so.

1.1.7 There was no obligation upon the IAA to consider Mr [EGY]'s risk profile against the 2012 UNHCR Guidelines 60 In my view, ground 8 must be dismissed for a number of reasons. 61 First, it was not suggested in the RACS' submissions on behalf of Mr [EGY] that he had a risk profile which brought him within any of the categories of those who may be at risk identified in the UNHCR Guidelines. Indeed there was no reference at all in the RACS submissions to the UNHCR Guidelines. In this regard, it is well established that "[i]t is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether the claim is made out": Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). 62 Secondly, it is true that the delegate considered, and decided adversely to Mr [EGY], the question whether he fitted one of the risk profiles highlighted in the UNHCR Guidelines by reason of his father's or uncle's support for the LTTE (AB135). However, in line with the principles earlier discussed, there was no obligation upon the IAA to rely upon the same country information as the delegate. Rather, the task of the IAA was to undertake its own assessment of the evidence and reach its own conclusions as to the weight, if any, to be given to the evidence, including country evidence such as the UNHCR Guidelines. While in cases where they are regarded as relevant, it is likely that the UNHCR Guidelines would be given significant weight, the question of their relevance to the particular case remains a matter for the IAA. 63 Thirdly, while the IAA did not rely upon the UNHCR Guidelines in the same way as the delegate, it clearly did not overlook them as the appellant conceded in the amended notice of appeal: see ground 8(v); see also AS at 2. To the contrary, the IAA relied upon the Guidelines in accepting Mr [EGY]'s claims of displacement as a young Tamil in the final years of the war (IAA reasons at [16]). The IAA also contrasted Mr [EGY]'s claims with the risks identified by the UNHCR in the Guidelines for ex-LTTE members who had been subjected to lengthy forced rehabilitation by the Sri Lankan government (IAA reasons at [24]). 64 Fourthly, while counsel for Mr [EGY] submitted that Mr [EGY] plainly fell within the risk profiles identified in the UNHCR Guidelines, ultimately the question of whether he had a profile of such a nature as to give rise to a well-founded fear of persecution or significant harm if returned to Sri Lanka was a question for the IAA to address as the administrative decision-maker charged with the merits review function. In this regard I note that the passage relied upon from the UNHCR Guidelines did not state that a person who fell within one of the enumerated categories would necessarily be at risk of persecution or harm. Rather, it recognised the need to have regard to the individual's specific circumstances in determining claims for international refugee protection, in line with the approach adopted by the IAA. 65 Finally, the IAA in fact undertook a risk profile assessment by reference to other, more recent country information, finding that the situation in Sri Lanka had improved in relevant respects since Mr [EGY]'s departure from Sri Lanka in 2012 when the UNHCR Guidelines were prepared. As such, it cannot be said that the IAA acted unreasonably in preferring more current country information over the UNHCR Guidelines. 66 It follows that ground 8 of the amended notice of appeal must also be dismissed.

3.2 Did the IAA fail to assess Mr [EGY]'s claims cumulatively (ground 9)?

1.1.8 The issue 67 Ground 9 of the amended notice of appeal reads: The Federal Circuit Court erred and committed a jurisdictional error when it did not uphold Ground 1 (b) of the Amended Application filed 23/04/2019 that the IAA failed to conduct its review pursuant to S 473CC of the Migration Act, in that it failed to consider the applicant's claims cumulatively. Particulars i. The Applicant's claims were set out at [AB15], [AB19], in his Statement [AB71] - [AB76], and his Supplementary Statement [AB102] - [AB103]; ii. Submissions on behalf of the Applicant were dated 13 March 2018 [AB110] - [AB123]; iii. The IAA set out most of the Applicant's claims at [AB152] - [AB153]; iv. The IAA considered the Applicant's claims separately in its decision, making determinations in respect of the claims, and at paragraph 50 stated in respect of the claim as a refugee: "The applicant does not meet the requirements of the definition of refugee in S 5H(1). The applicant does not meet s 36(2)(a)." v. The IAA considered the Applicant's claims separately in its decision, making determinations in respect of the claims, and at paragraph 56 stated in respect of the claim for complementary protection: "There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s 36(2)(aa)." vi. At no stage did the IAA consider the claims under s 36(2)(a), s 36(2)(aa) or S 5H(1) cumulatively, contrary to its obligations to properly review the decision of the Delegate. vii. Merely reviewing the individual grounds singly and individually will not satisfy the obligations to consider the claims as a whole and cumulatively; viii. Accordingly the IAA erred; ix. The Federal Circuit Court stated at [AB230]: "I accept the Minister's submission that the applicant's claims were considered both individually and cumulatively on a fair reading of the Authority decision."; x. There is nothing in the IAA decision on a fair reading to suggest the IAA considered the claims cumulatively, and accordingly the Federal Circuit Court erred in that it declined its jurisdiction to properly review the IAA decision according to law and committed a jurisdictional error. 68 Specifically, the appellant submitted that, having separately considered each of his claims to have a well-founded fear of persecution if return to Sri Lanka, the IAA simply concluded at [50] that "[t]he applicant does not meet the requirements of the definition of refugee in s.5H(1)" and therefore the refugee criterion for a protection visa. In his submission the IAA therefore failed to consider whether his claims cumulatively could give rise to a well-founded fear of persecution. In his submission, the same error was made by the IAA in concluding at [56] that there were no substantial grounds for believing that there was a real risk that Mr [EGY] would suffer significant harm so as to satisfy the complementary protection criterion in s 36(2)(aa). As such, in his submission, the FCC erred in holding at [56] that Mr [EGY]'s claims were considered both individually and cumulatively on a fair reading of the IAA's decision.

1.1.9 Fairly read, the IAA considered Mr [EGY]'s claims cumulatively 69 The appellant correctly submits that the IAA was required not only to assess his claims individually, but also to consider whether in combination it was satisfied that Mr [EGY] faced a real risk of harm if returned to Sri Lanka. As the Full Court held in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (DDK16): 33. … The obligation to give cumulative consideration to a visa applicant's claims arises as part of the decision-maker's obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant's claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker's duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]]. 70 It was common ground that the word "cumulative" does not appear in the IAA's reasons. However, as the Minister also submitted and the appellant accepted, the question is not whether the Tribunal used a particular word. The mere absence of a "formulistic incantation" of such a term cannot of itself establish a failure to perform the statutory task: SZTZY v Minister for Immigration and Border Protection [2018] FCA 911 at [10] (Logan J). The issue is one of substance, not of form. 71 Furthermore, as the Full Court held in DDK16: 32. … no obligation to make a "cumulative assessment" arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31] 72 In the present case, Mr [EGY] claimed to fear persecution or significant harm by reason of his links with the LTTE and those of his father, brother, and uncle, and as a failed male asylum seeker of Tamil ethnicity. As such it was incumbent on the IAA to consider the risks of harm to Mr [EGY] by virtue of his and/or his family's links to the LTTE and to factor these risks into its assessment of the risks of harm to Mr [EGY] by reason of his status as a failed asylum seeker and/or a young Tamil male. In my view, fairly read the IAA did precisely this. 73 Thus, for example, in considering the treatment to which Mr [EGY] might be subjected at the airport if returned to Sri Lanka and in terms of potential penalties for leaving Sri Lanka illegally, there was no obligation upon the IAA to consider his claim to have been the subject of adverse interest to the authorities when he left in 2012 because the IAA had rejected that claim. Rather, the IAA considered his possible treatment as a failed asylum seeker and a person who left illegally on the basis of its earlier findings that he was not of specific interest to the authorities in Sri Lanka when he left and was not a person in respect of whom the Sri Lankan authorities had any ongoing interest. Thus, while accepting at [44] that as a returning asylum seeker, he may be subject to surveillance and social stigma on returning to the north of Sri Lanka, it was not satisfied that this would amount to serious or significant harm in his case (IAA reasons at [44] and [53]). Furthermore, in considering the question of what treatment he might suffer having left Sri Lanka illegally, the IAA considered his claims to fear persecution or harm by reason of being of Tamil ethnicity (and as a Christian, albeit that he did not claim asylum on the grounds of his religion) because the IAA expressly found that all returnees are subject to the same procedures regardless of ethnicity and religion (IAA reasons at [45] and [54]). Similarly the IAA found that the I&E Act is a law of general application which applies to all Sri Lankan citizens and is not discriminatory on its face, in its application or in terms of its enforcement (IAA reasons at [49] and [55]). 74 As such, the primary judge correctly found that, fairly read as a whole, the IAA considered Mr [EGY]'s claims cumulatively in light of the country information and its earlier findings.

4. CONCLUSION 75 For these reasons, the appeal must be dismissed. As the Minister has been wholly successful in defending the appeal, the appropriate order is for Mr [EGY] to pay the Minister's costs as agreed or assessed. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.