EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 816

EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 816 | Case summary | Zoe

[74]

(a) on 8 June 2013 the first applicant EJQ18 and his wife EJT18, both citizens of Sri Lanka, arrived at Christmas Island, together with their eldest two children, EJU18 and EJV18: CB 333. Their youngest child, the fifth applicant, EJX18 was subsequently born in Australia;

(b) participated in an Unauthorised Maritime Arrival & Induction Interview ("Arrival Interview") on 18 May 2014;

(c) on 28 November 2016 the Applicants applied for the SHE Visas. The Applicants' claims can be summarised as follows (at CB 99-105):

(i) EJQ18 is a Tamil and originates from the Central Province of Sri Lanka but does not have Sri Lankan citizenship and is stateless;

(ii) EJQ18 lived for a time in the Northern Province with his family and as a result, would be imputed with links to the Liberation Tigers of Tamil Eelam ("LTTE");

(iii) EJQ18's father was beaten by the Sri Lankan Army ("SLA") and the family fled to India in 1990. They lived in an Indian refugee camp from that time onwards. EJQ18 did not return to Sri Lanka;

(iv) in approximately 2010-2011 EJQ18 tried to travel from India to Italy on a false passport but was stopped at the airport and arrested, and he spent around six months in jail and his name was published in the media in relation to the case;

(v) EJQ18 participated in hunger strikes and protests with other Sri Lankan refugees in his refugee camp in India. The Indian police intelligence service ("Q Branch") kept him under surveillance in the refugee camp and made his life difficult. He clashed with a Tamil NGO called "OFFER" when he refused to attend a Sri Lanka Independence Day ceremony in 2009;

(vi) EJQ18 applied for, and was granted, a Sri Lankan passport in or around 2012 because he was being repeatedly questioned by the Q Branch regarding his continued stay in India, but had no intention of using his passport to return to Sri Lanka;

(vii) EJQ18 fears being harmed by the Sri Lankan authorities for reasons of:

(A) his Tamil race;

(B) his imputed political opinion as an LTTE supporter because he lived in LTTE controlled areas;

(C) because his details were disclosed as part of the Department's data breach in February 2014 ("Data Breach");

(D) as a returning failed asylum seeker; and

(E) on the basis that he will have an adverse profile because of his court case and protests; and

(viii) EJQ18's children claimed that as they had not lived in Sri Lanka before they would be mistreated: CB 162;

(d) on 1 June 2018 the Delegate refused to grant the SHE Visas: CB 333-367. The Delegate was not satisfied the Applicants would face a real chance or risk of serious or significant harm. On the same day the matter was referred to the Authority for review under Pt 7AA; and

(e) on 25 June 2018 the Applicants provided submissions and new information to the Authority: CB 388-468;

(f) on 23 July 2018 the Authority Decision was to affirm the Delegate's Decision: CB 472-494.

[75]

(a) had regard to the material referred to it under s 473CB and to the Applicants' submissions: CB 474 at [4]-[5];

(b) did not have regard to the Applicants' new information as it said it did not satisfy either limb of s 473DD: CB 474 at [6];

(c) in circumstances where EJQ18 had been granted a Sri Lankan passport whilst living in India rejected EJQ18's claim that he was stateless and found that the Applicants were Sri Lankan nationals: CB 478 at [21];

(d) accepted, consistent with country information, that the Applicants moved to India in 1990 for their safety and security, where they lived until mid-2013 as refugees: CB 478-479 at [23]-[24];

(e) accepted that EJQ18 attempted to depart India illegally in 2010-2011 and was arrested and imprisoned for six months, but found that the articles and publications relied on by EJQ18 did not disclose his full name or image and it was not satisfied the Sri Lankan authorities were aware of the publications or had identified him as a result of the publications, as claimed: CB 479 at [25];

(f) accepted that EJQ18 received additional attention from Q Branch but did not accept this extended to Q Branch informing the Sri Lankan authorities of his presence and activities in India. It found EJQ18's claim in this regard was speculative. It also found EJQ18's unsubstantiated claims that his telephone calls and movements were monitored were an overstatement of the level of interest in him: CB 479 at [26]. The Authority found there was no foundation for EJQ18's claim that his court case may be reopened: CB 479-480 at [27];

(g) accepted that EJQ18 and EJT19 participated in mass protests in India and that EJQ18 participated in two hunger strikes, but was not satisfied that this involvement caused any ongoing difficulties or consequences for the Applicants: CB 480 at [28];

(h) accepted that EJQ18 encountered OFFER staff on occasions, but based on country information and EJQ18's evidence did not accept that these interactions would have been reported to the Indian or Sri Lankan authorities: CB 480-481 at [29];

(i) summarised its factual findings and having regard to relevant country information, found that there was no impediment to EJQ18 applying for an identity document on return to Sri Lanka: CB 482-484 at [36]-[40];

(j) having considered a range of country information which pointed to an improved security situation in Sri Lanka, was not satisfied that the Applicants faced a real risk of harm, including torture, on return to Sri Lanka due to the difficulties they faced in India and limited involvement in protest activities, combined with their profile of being Tamils from the Northern province who left Sri Lanka thirty years ago: CB 486 at [46];

(k) accepted that the third, fourth and fifth applicants, EJU18, EJV18 and EJX18 may have an accent, but did not accept that they would be treated negatively on this basis and found that this claim was speculative: CB 486 at [48];

(l) accepted that EJQ18 and EJT18 may be identified as having departed Sri Lanka illegally in contravention of the Immigrants and Emigrants Act 1948 (Sri Lanka) ("I&E Act"): CB 486 at [49], and having regard to relevant country information (see CB 486-488 at [52]-[55]), the Authority found that EJQ18 and EJT18 may be detained for a short period in an airport holding cell whilst waiting to be brought before a Magistrate;

(m) was not satisfied that questioning at the airport, investigation, imposition of a fine or the potential of being held in detention amounted to serious harm and that both EJQ18 and EJT18 had family in Sri Lanka who may be able to act as guarantors if required: CB 487-488 at [55];

(n) that the provisions of and penalties provided for in the I&E Act were laws of general application and any process or penalty the Applicants may face would not constitute persecution: CB 488 at [56];

(o) accepted the Applicants were affected by the Data Breach but did not accept the Sri Lankan authorities would be aware of the family's claims for protection as a result of the Data Breach: CB 488 at [57];

(p) accepted that as returning asylum seekers, the Applicants may be subject to a period of surveillance from the Sri Lankan authorities and social stigma in the north of Sri Lanka, but was not satisfied that this would amount to serious harm, and did not accept that the challenges the Applicants may face in re-establishing themselves amounted to serious harm: CB 488 at [59];

(q) found that the Applicants did not meet the criterion in s 36(2)(a): CB 488 at [60];

(r) in considering the Applicants' claims under the complementary protection criterion, relied upon its anterior findings in concluding that the Applicants did not face a real risk of significant harm because they were Tamils from the North who departed Sri Lanka illegally, had lived in India for an extended period of time, or were briefly engaged in protest activities: CB 489 at [63];

(s) whilst accepting that the Applicants may be identified as returning asylum seekers, was not satisfied that any monitoring or social stigma they may face would amount to significant harm: CB 489 at [64]), and was not satisfied that the questioning, imposition of bail or a fine, and the potential of being held in detention for a short period, amounted to significant harm: CB 489-490 at [64]-[65], and

(t) found that the Applicants did not meet the criterion in s 36(2)(aa): CB 490 at [66].

[81]

(a) by operation of s 473CA the Minister was required to refer the matter to the Authority. The Minister generally does so by completing the relevant form. That form does not appear in this Court Book, although it is sometimes included as a matter of course;

(b) the requirements for referral are found in s 473CB(1). The Minister must provide:

(i) material provided by the referred applicant(s) to the person making the decision before the decision was made;

(ii) any 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 Authority) to be relevant to the review;

(c) the provision of the information in s 473CB(1) is mandatory. The consequence is that if the matter was not validly referred to the Authority, the Authority may not have power to undertake its review under s 473DB, which it can only do on a decision referred to it under s 473CA (see s 473DB(1)): EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422 ("EVS17") at [35] per Allsop CJ, Markovic and Steward JJ, subject to materiality;

(d) the adherence to s 473CB(1) is critical in the context of Pt 7AA, which requires the matters to be determined on the papers: CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 at [105] per Derrington J. This means that there is a heightened importance to the strict adherence by the Department to the requirements of s 473CB: AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82; (2019) 376 ALR 93; (2019) 168 ALD 401 ("AUF18") at [70] per Allsop CJ, Jagot and Moshinsky JJ, where it was observed that section 473CB(1)(c) "should be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department's possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority)";

(e) the Applicants submit that a breach of s 473CB(1)(b) is more significant than a breach of s 473CB(1)(c). The difference is as outlined in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41] per Thawley J, where the Court said:

...(5) A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a "review" of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority's decision-making process - cf: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority's jurisdiction is, through no fault of its own, "constructively unexercised": SZFDE at [52].

[84]

(f) there are two critical documents that the Authority does not appear to have, and thus does not appear to have had regard to, and which were described as the "MP's Letter" and the "UNHCR Documents";

(g) in relation to the MP's Letter:

(i) EJQ18 alleged that having participated in hunger strikes while in the refugee camp in India he was at risk on his return to Sri Lanka as a person with "anti-government" sentiment. It must be recalled that he said he was a member of the "committee" and was an organiser of, and participant in, a number of hunger strikes, which were reported in the media and in which protestors had banners and posters. He said he was interviewed and on television. In support of that allegation, he said that he had provided a letter from an "MP" that his brother had obtained "stating that who ever participated in the hunger strike was at risk in Sri Lanka". EJQ18 said that he had provided the MP's Letter to his case manager. The interviewer specifically declined to hear more information about this, on the basis that a document had been provided, however, that document does not appear in the CB and has not been considered by the Authority;

(ii) the Authority dealt with the participation of EJQ18 and EJT18 in the hunger strikes at CB 480 at [28] where the Authority said that their participation did not result "in any difficulties". That finding is problematic in itself, given that it is not difficulties with the Indian Government that is relevant, but even if one assumes that this relates to the Sri Lankan authorities, the contents of the MP Letter must bear on the question;

(h) in relation to the UNHCR Documents:

(i) the Applicants gave permission for documents to be obtained from UNHCR: CB 175. EJQ18 said that in about 2010 he made an application to come to Australia legally as a refugee ("2010 Application"). EJQ18 said that the Australian authorities asked him to contact UNHCR, which he did. The 2010 Application was unsuccessful, but included the allegation that EJQ18 was stateless;

(ii) this is important information that the Authority should have had access to, and about which the Department was aware. The importance of the application cannot be understated because the Authority placed some importance on the fact that at EJQ18's first interview in Australia (the Enhanced Security Interview ("ES Interview")) he said he had Sri Lankan citizenship: CB 476 at [15], but in the context of the 2010 Application this is incorrect;

(iii) it is also relevant to note that the Authority made erroneous findings in relation to EJQ18's citizenship, in that:

(A) it found that his "siblings" had Sri Lankan citizenship. This is not correct. One of EJQ18's brothers (as well as his father) was alleged to not have citizenship: Arrival Interview Transcript;

(B) in coming to the conclusion that EJQ18 had citizenship, it conflates the terms "nationality" and "citizenship", relying in particular on EJQ18's temporary passport; and

(C) if EJQ18 had citizenship, why was there no response to his application made to the Sri Lankan High Commission while in India?;

(iv) in addition, the Authority should, when it became aware that it did not have all relevant information, have requested this information from the Department under s 473DC.

[90]

(e) the Department says (but not on affidavit) that it has no record of the MP's Letter, nor anything recording that EJQ18 provided any letter to his Case Manager. The Arrival Interview Transcript simply records that the interviewer "heard" that EJQ18 had provided a letter to his Case Manager (and it is unclear whether the interviewer heard it from EJQ18 himself or some other source). There is no independent evidence as to if and when EJQ18 provided the MP's Letter to any Departmental officer;

(f) putting aside the lack of evidence about the MP's Letter, there is no error in the Secretary not referring the MP's Letter to the Authority given:

(i) to the extent the Applicants contends that the MP's Letter is captured by s 473CB(1)(b), that sub-section only applies to "material provided by the referred applicant to the person making the decision before the decision was made" (emphasis added). Even if one were to accept that that provision is not to be interpreted narrowly or literally to only apply to the specific delegate who considered the SHE Visa application at first instance: BBI18 v Minister for Home Affairs [2020] FCA 84 at [21]- [22] per Greenwood J, it is straining the meaning of the bolded phrase above to include any Departmental officer over two and a half years before the SHE Visa application was even lodged (the Arrival Interview took place in May 2014, and the SHE Visa application was lodged in November 2016). The Secretary cannot reasonably be expected to excavate all the material in the Department's possession from prior to the lodging of a visa application in order to locate documents which an applicant may have referred to or provided to a particular officer at some point;

(ii) aside from this singular reference to the MP's Letter in the Arrival Interview, the MP's Letter was not otherwise referred to at all during the visa and review process; and

(iii) EJQ18 has also not filed a copy of the MP's Letter to demonstrate the materiality of the alleged error. Without a copy of the letter the onus of proving the materiality of any error cannot be discharged: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 ("Nathanson") at [1] per Kiefel CJ, Keane and Gleeson JJ. The Court should readily infer that any error (which is not apparent or conceded) would not have realistically resulted in a different decision in circumstances where EJQ18 did not make any reference to the MP's Letter aside from at the Arrival Interview in 2014 and that the MP's Letter was simply about an MP's view that "those who participated in protest or hunger strike are in risk in Sri Lanka". Whether those who participated in a protest or hunger strike were at risk was a matter for the Authority to consider after a review of the evidence, and in particular country information. An MP's opinion would have been of minimal weight, especially if that MP's opinion was formed in or around 2014, many years before the Authority Decision;

(g) in relation to the UNHCR Documents there is absolutely no evidence that the Department received any documents in response to the Department's correspondence to the UNHCR: CB 175. Furthermore, EJQ18 made no reference to the importance of UNHCR Documents during the entirety of the visa and review process. In the absence of any evidence about what the UNHCR Documents would have included (if they even exist), EJQ18 cannot discharge the onus of establishing the materiality of any error;

(h) as for the final limb of this ground in relation to the Authority not having exercised its discretion under s 473DC to obtain new information from EJQ18, the Court is to ask itself this question: is an intelligible justification evident for the Authority to not have exercised its s 473DC discretion to obtain new information? If the answer to that is yes, then there is no unreasonableness: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 ("ABT17") at [20] per Kiefel CJ, Bell, Gageler and Keane JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 ("Li") at [76] per Hayne, Kiefel and Bell JJ. The Minister contends that the evident and intelligible bases for the Authority to not have exercised its s 473DC power are that:

(i) the Applicants were legally represented and had already submitted detailed new information: CB 392-468;

(ii) at no point did the legally represented Applicants request that the Authority obtain new information from them. There was therefore nothing "triggering" the Authority to exercise its discretion: DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [51] per Beach J. It is well-settled that it is for an applicant to present their case;

(iii) the MP's Letter and UNHCR documents (if they exist) were not referred to at all in the Applicants' submissions, and did not form a central part of their case; and

(iv) under Pt 7AA, as a default position, the Authority was to conduct its review on the papers without obtaining new information: s 473DB.

[115]

The Minister's submission is curious insofar as it suggests a possible need to "excavate" the MP's Letter from the records kept by the Secretary. That submission again does not suggest that the MP's Letter does not exist, but rather that it might be too hard to find (although it is not apparent that anyone in the Department has searched for it). And, yet, the Arrival Interview Form, produced more than two and a half years before the SHE Visa application was made is able to be "excavated" and appears in the CB.
In BBI18 at [20]-[27] the Federal Court observed that:
1. As to s 473CB(1)(b), it would indeed be odd to attribute such a narrow construction to the section as that adopted by the primary judge. First, subsection (1)(b) refers, in literal terms, to material provided "by the referred applicant" but it cannot be thought that material provided by an authorised agent falls outside the scope of those words simply because the material is not literally provided by the referred applicant in strict compliance with those words.
2. The subsection also refers to material provided by the referred applicant "to the person making the decision". If that phrase is to be construed in a way that confines its operation, as the primary judge thought, to material provided by the referred applicant to the "actual decision‑maker", that is, the "particular" named person making the decision (which, in this case, is delegate "Stephen"), the provision would have no operation should it turn out to be the case, for one reason or another (such as sickness, accident, death, workloads or file reallocations) that delegate "Julie", who was dealing with the matter and being provided with material, was unable to make the decision and another decision‑maker, delegate "Joe", was now required to assume responsibility for deciding the application and making the decision. Could the Minister or the Department reasonably or rationally contend that material provided to the Department previously or to the Minister or to Julie would now have to be re‑provided in its entirety to delegate "Joe" for the material to constitute statutory "material" provided by the referred applicant "to the person making the decision" for the purposes of s 473CB(1)(b) of the Act?
3. The text of s 473CB(1)(b) is not reductionist in the sense of reducing its scope to material provided to a "named person" but purposive in bringing within the statutory conception of "review material" all material provided by an applicant for a Safe Haven visa to the Departmental officers or the Minister or a delegate of the Minister engaging with the applicant and the application so as to comprehend the body of material to be put before "the person" who ultimately "makes the decision" before the decision is made.
4. The appellants also say that s 473CB(1) ought to be construed in light of the Code of procedure for dealing fairly, efficiently and quickly with visa applications established under the Act: Part 2, Div 3, Subdiv AB. The appellants say that since s 52 regulates how a visa applicant may communicate with the Minister and s 55 permits a visa applicant to give the Minister any additional relevant information to which regard must be had, it would be unlikely that the Parliament intended to enable a visa applicant to give information to the Minister and require it to be taken into account but yet limit s 473CB(1)(b) to only that class of material that happened to be provided to a particular named delegate who ultimately makes the decision, and to exclude material otherwise put forward by the referred applicant for consideration.
5. The applicants contend that once material has been provided to the departmental officers or the Minister or his delegate (in a way permitted by s 52 or in some other way permitted by the Minister), s 473CB(1)(b) is engaged as material has been provided by the referred applicant to the decision‑maker and if that material, so provided, does not make its way into the hands of the actual decision‑maker for one reason or another, it nevertheless remains statutory "review material" which must be given to the IAA by reason of s 473CB(1) recognising that the IAA must review a fast‑track reviewable decision referred to it under s 473CA by considering the review material provided to it under s 473CB: see s 473DB.
6. As to the facts of this case, the statement of BBI18 accompanying the Safe Haven visa application refers, at paras 2 and 3, to the Entry and Screening Interviews with BBI18 and the Initial Statements. That reference engaged, for the purposes of the Safe Haven visa application, the Initial Statements which had been provided to the Minister's departmental officers on or about 24 October 2013 and 7 July 2014. To the extent that the delegate thought that the Initial Statements were confined to the "[Screening] decision" (see [7] of these reasons) and the IAA accepted that position by "not asking for the documents" (see [8] of these reasons), and thus the Initial Statements were thought to fall outside the scope of the Safe Haven visa application, the position, in truth, is that the Initial Statements had been expressly brought within the Safe Haven visa application by BBI18's statement attached to the application itself.
7. Thus, the Initial Statements formed part of the material provided by the referred applicant to the person making the decision before the decision was made for the purposes of s 473CB(1)(b).
8. In any event, the Initial Statements, if not falling within s 473CB(1)(b), fell within s 473CB(1)(c) as "any other material" in the Secretary's possession or control as material which is relevant to the review of the referred decision and material the Secretary ought to be taken to have considered to be relevant at the time of referral of the refusal decision to the IAA. Although the primary judge describes a possible decision by delegate "Stephen" to the effect that the Initial Statements were considered, by him, not to be relevant to the review of the refusal decision as, "a mistake of the Secretary" (PJ at [67]), I accept that the express cross‑reference to the Entry and Screening Interviews and, more relevantly, the Initial Statements as part of the supporting statement for the Safe Haven visa application, meant that no delegate in the position of "Stephen" could reasonably have considered that the Initial Statements, as part of a review of the refusal decision, could not have been capable of assisting the IAA or capable of engaging at least the possibility that the Initial Statements taken together with the other review material could be probative of a fact in issue in the course of the review.
To the extent that it is determinative of a relevant issue BBI18 is binding on this Court: Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]- [55] per Judge Lucev.
In BBI18 the Federal Court gave detailed consideration to the question of whether the material provided to a person other than "the" delegate can be considered to have been provided "to the person making the decision". In BBI18 at [22] per Greenwood J the Federal Court it was determined that "all material provided by an applicant for a Safe Haven visa to the Departmental officers or the Minister or a delegate of the Minister engaging with the applicant and the application" (emphasis in original) was material provided "to the person making the decision" for the purposes of s 473CB(1)(b). Thus "all material" provided to Departmental officers or the Minister or a delegate is caught if any one or more of those persons are "engaging with the applicant and the application". It is the latter phrase - "engaging with the applicant and the application" - which encapsulates the crux of the Minister's argument that, at least, s 473CB(1)(b) does not apply where, as here, a document was provided to a Departmental officer when the making of the SHE Visa application was still more than two and a half years away. The Court notes that this point did not arise in this context in BBI18 because in BBI18 the documents provided in October 2013 and July 2014 had been referred to in statements by BBI18 accompanying BBI18's SHE Visa application made in September 2016: BBI18 at [3]-[4] per Greenwood J, that reference thus engaging the earlier provided documents for the purposes of s 473CB(1)(b): BBI18 at [27] per Greenwood J.
On the basis of BBI18 it would therefore appear that the phrase "engaging with the applicant and the application" requires that:

[121]

In AUF18 at [70]-[72] and [74]-[76] the Full Court of the Federal Court said as follows:
1. However, it is also not the case, and the Minister does not suggest, that s 473CB(1)(c) only requires the Secretary (or his or her delegate) to consider documents of which he or she is aware. In order to give the provision a sensible operation, it is necessary for some process to be put in place to bring to the attention of the Secretary (or his or her delegate) potentially relevant documents. Unless there is such a process, and it involves the taking of reasonable steps to identify potentially relevant documents, the provision cannot achieve its purpose. Thus, the provision should be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department's possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority). This is consistent with the principle expressed by Thawley J in EMJ17 at [41(4)]: "An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c)." That proposition was approved by all members of the Full Court in CQR17: see at [28] per Jagot J (with whom Reeves J agreed at [4]); and at [80] per Derrington J.
2. Applying these propositions in the present case, in our view the Secretary failed to take reasonable steps to locate potentially relevant documents in the Department's possession or control. The Secretary (or his or her delegate) could have performed, but did not perform, a search of the Department's electronic database using the appellant's client identification number, and this would have yielded the Human Rights Documents. It is not suggested that carrying out a search using the appellant's client identification number would have been difficult or particularly time-consuming. It would seem to be an obvious way of checking whether there were other client files for the appellant, potentially containing relevant documents. As the circumstances of this case show, it could not be assumed that the client file associated with the appellant's visa application was the only client file for the appellant, or that it contained all documents relevant to the review.
3. Alternatively, the delegate could have carried out a search using the appellant's nominal roll number (or Boat ID). This too would have yielded the Human Rights Documents. Again, it is not suggested that carrying out a search using the appellant's nominal roll number would have been difficult or particularly time-consuming. To the extent that the Minister's submissions suggest that this search would have involved considering all of the documents associated with the boat that the appellant arrived on, that does not appear to be correct. As the cross-examination of Mr Lochland (referred to above) makes clear, the nominal roll number or Boat ID (i.e. QVA056) is specific to the appellant. That number could, therefore, have been used to locate documents specific to the appellant.

[122]

...

The Minister's second reason is that nothing the appellant said to the delegate, the Department or the Authority could have put anyone on notice that he had previously given the Human Rights Documents to the Department. While this may be accepted, it needs to be borne in mind that the process established by Pt 7AA, whereby the Authority usually conducts its review on the papers, does not provide the same opportunity as a hearing for clarification of matters such as whether or not the Human Rights Documents had been previously provided to the Department. In the context of a hearing, it would be commonplace for a matter such as this to be raised by the decision-maker, giving the applicant an opportunity to respond. This type of interaction is less likely to occur in the course of a review on the papers. This underlines the importance of the Secretary's delegate taking reasonable steps to identify potentially relevant documents as an antecedent step to determining what documents to provide to the Authority.

The Minister's third reason is that the systems in place to identify documents were not inherently unreasonable. The Minister submits that it was not unreasonable for the Secretary (or his or her delegate) to focus on the file that was before the delegate exercising power under s 65 of the Migration Act. While it may be accepted that it was not unreasonable for the Secretary's delegate to focus on the file that was before the delegate, this does not answer the question whether the Secretary's delegate took reasonable steps to locate other potentially relevant documents. Further, insofar as the systems in place involved the person who made the decision on the visa application completing the Referrals Checklist, and the Secretary's delegate relying on that checklist, that was insufficient to constitute the taking of reasonable steps to locate potentially relevant documents in the circumstances of this case.

For these reasons, in our view, the Secretary failed to take reasonable steps to identify potentially relevant documents in the Department's possession or control for the purposes of considering whether the documents were relevant to the review to be conducted by the Authority, amounting to a breach of the obligation in s 473CB(1)(c).

[133]

On the basis of the above evidence it cannot be said that there are any documents which would fall within the description "UNHCR Documents" which might be in the possession or control of the Secretary for the purposes of s 473CB(1)(c). Nor is it apparent that EJQ18 or EJT18 ever actually applied for an Australian visa: the evidence suggests that they may have "tried" to do so, but in trying were sent or referred to the UNHCR by representatives of the Australian Government. Even if EJQ18 and EJT18 had "applied" it is not evident to who they "applied" if they did not visit an Australian High Commission, Embassy, Consulate or Service Delivery partner and were never interviewed in connection with the issuance of an Australian visa.
Ultimately it appears that the UNHCR Documents are relied upon for an assertion made therein that EJQ18 was stateless and that in 2010 that he asserted that he was stateless.
EJQ18's claims about his citizenship were dealt with by the Authority, in particular at CB 477-478 at [19]-[21] where the Authority observed and found as follows (footnotes omitted):
1. On 9 January 2018, Applicant 1 submitted a statutory declaration regarding his citizenship. He states that his previous claims that he was a Sri Lankan citizen (in his arrival interview, in his written statement of claims and in the SHEV application) were in fact incorrect. He repeated his previous statements about his family's history, and the inconsistent application of citizenship to some of his siblings. He further claimed that his parents had lodged an application for citizenship on his behalf at his birth in 1974 however the Sri Lankan authorities had refused to recognise him as a Sri Lankan citizen at the time and had issued him a birth certificate stamped with the words "Indian Tamil". He stated that he had been given an opportunity to register as a Sri Lankan citizen while he was living in the Indian refugee camp however he never received any citizenship documentation from the Sri Lankan authorities. He concluded that he held neither Sri Lankan nor Indian citizenship.
2. A copy of Applicant 1's now expired Sri Lankan passport that was included with the referred material shows that the passport was an N series passport and that the document was issued under the 'refugee repatriation program' and valid for one year. Country information indicates that to obtain an N series passport the applicant must provide an application form, two photographs, a Sri Lankan birth certificate, a copy of their proof of status in the country of residence abroad, a copy of their Sri Lankan National Identity Card (if held) and the passport fee. Country information confirms that Sri Lankan refugees residing in Tamil Nadu are able to apply for identity documentation from the Sri Lankan Consulate office in Chennai.
3. Applicant 1 considers he does not hold Sri Lankan citizenship and has suggested he is stateless. I note the Sri Lankan authorities granted him a Sri Lankan temporary passport in 2012 with "Sri Lanka" identified in the nationality field and I am of the view that the Sri Lankan authorities were satisfied regarding his nationality at the time that they granted the passport. Country information indicates that "Indian Tamils" (also known as "Plantation Tamils", Hill Country Tamils" or "Up-Country Tamils") are seen as part of the overall Tamil population of Sri Lanka. I am not satisfied that the inclusion of the reference "Indian Tamil" in Applicant 1's birth certificate of itself indicates that he is not a Sri Lankan national. Despite the notation "Indian Tamil" on his birth certificate, the applicant was granted a Sri Lankan passport when he applied for one and while he has asserted that he is stateless, I am not satisfied that this is the case. I am satisfied that Applicant 1, along with the other applicants, are nationals of Sri Lanka and that Sri Lanka is the receiving country for the purposes of this review.
It is relevant to observe that in his SHE Visa application made on 17 November 2016 EJQ18 had claimed to be a Sri Lankan citizen: see, for example, CB 74 at Q 18. In 2012 EJQ18 also had issued to him a temporary Sri Lankan passport to enable him to return to Sri Lanka (which he did not do).
Plainly, on the facts, there was more than sufficient material for the Authority to conclude that EJQ18 was a citizen of Sri Lanka, and not a person who was stateless. On that basis the UNHCR Documents (if they exist) would not be material as the Authority has plainly considered EGQ18's assertion that he is stateless, and it is not apparent that the making of another assertion to the same effect would alter the Authority's finding as to EJQ18's citizenship given the positive evidence relied upon (including EJQ18's admission of Sri Lankan citizenship) to make that finding.
In the above circumstances there was no error in the Authority Decision in relation to the alleged failure to refer to any documents received from the UNHCR to the Authority under s 473CB or the alleged failure to exercise power under s 473DC to obtain the UNHCR Documents from EJQ18 (it not being apparent and there being no evidence that EJQ18 had any UNHCR Documents in any event).
Ground 1 is therefore made out in part only, but the part in respect of which it is made out establishes jurisdictional error on the Authority Decision as identified at [47] above.

[143]

(a passage cited with approval in Jata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1998 at [33] per Wheelahan J);

(c) with the above principle and background in mind, the Authority properly considered the Applicants' claim about their capacity to subsist by:

(i) considering the country information at CB 483-485 at [40]-[45] about the improvement in the situation in Sri Lanka, such that the Applicants would not be mistreated in any way. This included a rejection of EJQ18's claim that his National Identity Card would be marked with an "X", which would result in his mistreatment: CB 483-484 at [40];

(ii) none of the reasons advanced by EJQ18 such as his being a Tamil from the North, having had past difficulties in India, and having engaged in limited protest activities, would result in any adverse profile: CB 486 at [46];

(iii) in relation to the children, their young age, upbringing overseas and language capabilities were expressly considered at CB 486 at [48]. Nevertheless, the Authority was not satisfied that they would be mistreated for any of those reasons. The Authority also took into account that the Applicants would have access to assistance from family members: CB 486 at [48];

(iv) family support is referred to again at CB 487-488 at [55] where the Authority found that EJQ18 had a brother who lived in Sri Lanka, and EJT18 had a father and sibling residing there;

(v) the Authority acknowledged that the Applicants may face "challenges ... re-establishing themselves" but was not satisfied any such challenges amounted to serious harm: CB 488 at [59]; and

(vi) in light of the above, in essence, the Authority's rejection of the capacity to subsist claim (because EJQ18 did not have any adverse profile, and the security situation in Sri Lanka had improved since EJQ18 departure) was subsumed in the Authority's other findings in the WAEE sense: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 630; (2003) 75 ALD 630 ("WAEE") at [47] per French, Sackville and Hely JJ. It should also be borne in mind that whether a person has a well-founded fear of persecution is principally concerned with the persecutory actions of third parties: CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30]- [31] per Collier J. The question therefore was not whether the Applicants would have a higher standing of living, or better paid employment in Australia compared to in Sri Lanka. The question was also not whether the Applicants would be able to find paid employment. Rather, the question was whether the Applicants would be persecuted for any reason, or in the complementary protection context suffer significant harm intentionally inflicted: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556. The Authority answered that in the negative by having regard to whether the Applicants had an adverse profile for any of the reasons they raised;

(d) in relation to the extortion integer, that integer was put forward as follows before the Authority at CB 297:

[169]

(a) a decision maker must reason and act reasonably within the meaning of Li. Making findings based on unwarranted assumptions may also ground jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641;

(b) speculation should not form the basis of a decision, which must "proceed by reference to "rationally probative evidence" rather than on mere "suspicion or speculation": Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; (1980) 31 ALR 666; 4 ALD 139; (1980) 1A IPR 708; FLR at 62 per Deane J (with whom Evatt J FLR at 57 agreed), and see also DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353;

(c) the Authority made findings in regard to EJQ18's profile, essentially that he did not have a profile of interest to the Sri Lankan authorities, including findings that he was not identifiable to the Sri Lankan authorities. These findings are not based on the totality of the evidence or are otherwise unreasonable, and the Authority has not properly considered the factors that indicate that EJQ18 is at elevated risk. Relevant aspects of the evidence include:

(i) the Applicants are described as "Indian Tamils" and EJQ18 as "stateless;

(ii) EJQ18 was a member of the refugee committee in India. He was not merely a participant in the hunger strike, but an organiser. There were a number of strikes. The protests were covered by the media, and EJQ18 was interviewed: CB 26. He said that he was:

(A) "on papers and on the television"; and

(B) "campaigning against what the Sri Lankan government was doing. I was having a fasting thing, propaganding (sic) with fasting without eating...I led the whole camp into a propaganda";

(iii) the protestors did not merely undertake a hunger strike, but also had banners and posters;

(iv) EJQ18 has a criminal conviction in India. However, it is not merely the fact of the conviction, but the subject matter that is relevant. The offence was serious - EJQ18 was detained for 6 months;

(v) EJQ18 was invited to, and did, apply for Sri Lankan citizenship, and did not receive a response. The implication is that the "invitation" was a ruse to monitor individuals and obtain information. In any event, he can now be easily identified as a person who resided in the Indian refugee camp and connected to his activities in the protests and his legal case;

(vi) EJQ18 said that he was under surveillance. This was not accepted, on the basis that he had not provided independent evidence. He was found to have exaggerated his claim (that is an adverse credibility finding). However, such a finding is unreasonable: the point of covert surveillance is that there is no independent evidence. EJQ18 gave his reasons as to why he thinks he was monitored: BEL16 v Minister for Home Affairs [2019] FCA 1678; (2019) 80 AAR 170; (2019) 167 ALD 295;

(vii) EJQ18 admits to Tamil separatist sentiment: CB 99. Tamils, he says, should be able to govern themselves. EJQ18 said he would be the subject of harm if he expresses that sentiment. Consistent with Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (""), it was relevant to consider why he would not speak of his views if he were to return to Sri Lanka. This was not done. EJQ18 said he would not express his views because of the real risk that as a necessary and foreseeable consequence of being removed to Sri Lanka he would otherwise suffer significant harm;

(d) even if the Authority is correct, no consideration is given as to the possibility that the Sri Lankan authorities may later become aware of EJQ18's criminal activity and involvement in anti-government activities. A proper consideration of the matter requires that regard be had to the "reasonably foreseeable future": MZYXR v Minister for Immigration and Citizenship [2013] FCA 252; (2013) 141 ALD 276 ("MZXYR"). The Authority has found that the Applicants will be questioned on their arrival, and it may be supposed that given the fact that they have never lived in Sri Lanka as adults, more rigorous enquiries will be made. Given that the Applicants have family members still residing in refugee camps in India, it is likely that it will be determined that the Applicants also resided there. It must be remembered that EJQ18 was on the refugee committee and it would not take much imagination to connect him with the hunger strikes/protests, as well as his criminal conviction and the media/academic commentary in relation thereto. The exercise of determining the reasonably foreseeable future has not been undertaken; and

(e) in all the circumstances, the Authority has not taken into account all of the evidence regarding EJQ18's profile and has otherwise considered the claim unreasonably.

[171]

(a) the following principles should be borne in mind about the alleged errors made by the Authority in its consideration of the evidence and the reasonableness of its findings:

(i) it is well-settled that a decision maker is not required to refer to or make findings upon every piece of evidence: WAEE at [46] per French, Sackville and Hely JJ. Neither is it necessary for a decision maker to give a line-by-line refutation of evidence: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 ("Durairajasingham") at [65] per McHugh J. A failure to consider evidence would only be a jurisdictional error if that evidence was of central importance to an applicant's claims or to the decision-maker's decision: SZSRS at [46]-[56] per per Katzmann, Griffiths and Wigney JJ;

(ii) in relation to unreasonableness, a decision which lacks an evident and intelligible justification is unreasonable: Li at [76] per Hayne, Kiefel and Bell JJ;

(iii) a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious, is unreasonable: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1 at [26] per Black CJ;

(iv) a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ: Li at [28] per French CJ, [65]-[66] per Hayne, Kiefel and Bell JJ. Put differently, unreasonableness is not established simply because the Court would have taken a different view of the matter: Li at [30] per French CJ, [75] per Hayne, Kiefel and Bell JJ, and [107] per Gageler J;

(v) emphatic disagreement with a factual finding does not demonstrate any unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 ("Eshetu") at [40] per Gleeson CJ and McHugh J; and

(vi) the test for unreasonableness is "necessarily stringent": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 ("SZVFW") at [11] per Kiefel CJ, "extremely confined": SZVFW at [52] per Gageler J or requires something "in the realm of the extraordinary": SZVFW at [70] per Gageler J;

(b) the Minister contends that the Authority properly considered the Applicant's evidence and made reasonable findings because:

(i) the Authority's reasoning on EJQ18's Sri Lankan nationality and citizenship are set out in detail at CB 476-478 at [13]-[21]. In essence, based on country information that Indian Tamils were considered a part of the Tamil population of Sri Lanka and EJQ18 previously held a Sri Lankan passport, it did not accept EJQ18's claim to be stateless. That finding was open to it on the evidence. The Authority was "not required to uncritically accept an applicant's claims": Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 ("Randhawa"); FCR at 451 per Beaumont J;

(ii) the Authority clearly considered EJQ18's claims about his hunger strikes and protest activity: see CB 475 at [8], 480 at [28], 483 at [38], and 486 at [46]. The Applicants' submission about the lack of mention of banners and posters is beside the point;

(iii) EJQ18's arrest, detention for six months and Court case were specifically referred to at CB 475 at [8] and 479 at [25]. It cannot sensibly be suggested that, having referred to those issues expressly, the Authority then somehow failed to consider them;

(iv) the steps EJQ18 explored to obtain Sri Lankan citizenship were considered at CB 477 at [19]. Again, it is difficult to see how the Authority can be said to have failed to consider that evidence;

(v) to the extent the Applicant's quibble with the Authority's finding about the lack of evidence that the Sri Lankan authorities kept EJQ18 under surveillance during his time in the Indian refugee camps, the Authority gave rational and cogent reasons for its findings at CB 479 at [26], including that there was "no real substantiating detail" about those claims;

(vi) in relation to EJQ18's purportedly "separatist sentiment", that was not a claim advanced by the Applicants, and nor did they refer to or rely upon the principles in S395/20002 as now claimed. This contention is an example of reconstruction of claims on judicial review: ASO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1310 at [103] per Derrington J;

(c) as for the assertion that the Authority needed to consider "the possibility that the Sri Lankan authorities may later become aware of EJQ18's criminal activity and anti-government activities" purportedly based on MZYXR, that assertion does not demonstrate any error in the Authority Decision. The Authority did not confine itself (as had the decision-maker referred to in MZYXR) to the present or immediate future. Rather, the Authority found that, having regard to country information and the lack of any adverse profile, the Applicants would not face a real chance of serious harm or real risk of significant harm. Given its references to the Applicants re-establishing themselves, it is clear that the Authority was looking into the reasonably foreseeable future and not just at the present or immediate future;

(d) contrary to the Applicants' submission, the Minister contends that the Authority was not required to suppose that at some indistinct point in the future, EJQ18 may develop an adverse profile, contrary to what the Authority had already found. To do so would be to "speculate into the unknown future", which decision-makers are not required to do: EGY18 v Minister for Home Affairs [2019] FCCA 1874 ("EGY18 - FCCA") at [89] per Judge Driver. An appeal against EGY18 - FCAA was dismissed: EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796; see also ECE17 v Minister for Immigration [2019] FCCA 1223; and

(e) as should be apparent, the fundamental substance of this ground cavils with the Authority's conclusions and at most, demonstrates emphatic disagreement with the Authority's findings: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [61] per McKerracher, Griffiths and Rangiah JJ, and not jurisdictional error. The Court should be cautious not to unintentionally slide into conducting merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 199 ALD 446 at [30] per French CJ; Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

[172]

Much of the Applicants' submissions on ground 3 concerns itself with asserting facts and putting argument in a manner which invites the possibility of merits review and the possibility of crossing the rigorously policed line between judicial review and merits review which lies at the heart of Australian administrative law: Murrumbidgee Groundwater at [127] per Spigelman CJ; Zentai (No 3) at [367] per McKerracher J. This Court cannot engage in a general review of the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 ("Wu Shan Liang"), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Doubtless the Applicants disagree with the Authority Decision, but even strong disagreement with the Authority Decision is not necessarily indicative of jurisdictional error: Eshetu at [40] per Gleeson CJ and McHugh J; Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [75] per Colvin and Halley JJ. The Authority was not bound to refer to every item of material relied upon by the Applicants and a failure to take into account a particular piece of evidence does not necessarily give rise to error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 ("Yusuf") at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ; Durairajasingham at [65] per McHugh J; WAEE at [46] per French, Sackville and Hely JJ,: Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed). The weight to be afforded to the material before the Authority (and in particular, country information: NAHI at [11] per Gray, Tamberlin and Lander JJ, was a matter for the Authority: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. And if the Authority Decision was one that was reasonable, rational and open to it on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 ("SZMDS") at [131]-[135] per Crennan and Bell JJ, then it is not one affected by jurisdictional error.
EJQ18's claims about his citizenship and the manner in which the Authority dealt with them are set out at [50]-[55] above. Plainly, on the facts, there was more than sufficient material for the Authority to conclude that EJQ18 was a citizen of Sri Lanka, and not a person who was stateless, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: SZMDS at [131]-[135] per Crennan and Bell JJ. There was no error in relation to the Authority's finding as to EJQ18's citizenship.
The Authority noted that EJQ18 had claimed to be involved in the hunger strikes and protests: CB 475 at [8], and considered, in some detail, the involvement of EJQ18 in the refugee camp management committee, the hunger strikes and protests and the consequences thereof at CB 480 at [28] as follows:

[173]

Applicant 1 claimed that he was a leader in the refugee camp management committee and that he assisted the other refugees with local issues such as repairs to the refugee centre. He did this role as a form of service to his fellow refugees. He further claimed that in the last years of the war (2008 and 2009) he participated in hunger strikes and protests with other Sri Lankan refugees in his camp against the Sri Lanka conflict and the treatment of the Tamil population in Sri Lanka. Applicant 1 advanced these claims in his enhanced screening interview, his arrival interview and at his SHEV interview. Applicant 2 repeated the claims regarding the protests and hunger strikes in her arrival interview. Both applicants provided detailed information to the interviewing officers and the delegate about the hunger strikes/protests including the process the refugees went through to obtain permission from the relevant Indian authorities to hold the protests. Applicant 1 stated that the Indian officials had told him that the refugees were free to protest against the war and the Sri Lankan government but that they must not make any negative comments about India. The applicants claimed that they always complied with this requirement. Applicant 1 provided a copy of an article in the online newspaper 'Tamil Net' which reported on a protest in a refugee camp in Tamil Nadu in February 2009. The article includes a photograph of a large group of people who the article states were participating in a hunger strike against the war in Sri Lanka at the time. The article mentions "3000 Eelam Tamil refugees" having taken part in the hunger strike. It makes no mention of the involvement of the applicants in the protest or names or otherwise identifies either of the applicants. I accept that, like many other refugees, the applicants participated in a mass protest in India towards the end of the Sri Lankan conflict and afterwards about the treatment of Tamils and the actions of the Sri Lankan government. The claim that Applicant 1 also participated in a small number of short hunger strikes was provided by both Applicant 1 and Applicant 2 in their separate arrival interviews and I accept Applicant 1 was involved in one or two hunger strikes at some point during 2008 and 2009. Applicant 2 stated to the delegate that the hunger strikes lasted approximately one or two days only. The applicants did not claim that they experienced any adverse treatment following the hunger strikes and I am not satisfied that their joint participation in the mass protests and Applicant 1's participation in the hunger strikes resulted in any difficulties for the applicants or that there were any ongoing consequences for them.

[176]

EJQ18, who was represented by lawyers (albeit different ones) before the Delegate and the Authority, referred to no country information for his assertions concerning the provision of information by Q Branch to the Sri Lankan authorities, either generally or specifically related to EJQ18 (the latter would of course be highly unusual). The Authority did have regard to country information which indicated that the Indian Q Branch was responsible for the supervision of Sri Lankan refugees in India: CB 479 at [26], but there was no other country information referred to on this issue. The weight to be afforded to the country information which was before the Authority, and as limited as it appears to be, was a matter for the Authority: NAHI at [11] per Gray, Tamberlin and Lander JJ.
As to the extent of surveillance by Q Branch alleged by EJQ18 it must be borne in mind that the Authority was not required to uncritically accept all or any of the claims made by EJQ18, or have rebutting evidence before it could decide not to accept EJQ18's claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481_,_ CLR at 596 per Kirby J; Randhawa, FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]- [37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). The finding made by the Authority that there was "no real substantiating detail" as to this claim was open to it on the lack of evidence before it, and again it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: SZMDS at [131]-[135] per Crennan and Bell JJ.
The conclusions arrived at by the Authority on this issue were open on the limited evidence before the Authority and are not indicative of error in the Authority Decision.
EJQ18's submitted that it was "inconceivable" that the Sri Lankan authorities were not monitoring the activities of the Tamil diaspora in the refugee camp and that they would not have been aware of media articles concerning a Sri Lankan's attempts to flee India on a false passport and to have attempted to identify that person (who was EJQ18). The relevant passage in the Authority Decision at CB 480 at [28] is set out in that paragraph as quoted at [91] above and the Authority notes that the article referred to says there were 3000 Tamil refugees involved in the hunger strike and that it makes no mention of EJQ18 (or EJT18) by name and does not otherwise identify them. At CB 483 at [38] having referred to UK Home Office information about the change in focus of the Sri Lankan Government in identifying Tamil activists the Authority concluded that:

Parties

Applicant/Plaintiff:

EJQ18

Respondent/Defendant:

Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 816

Legislation Cited (2)

Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Cases Cited (97)

(2020) 383 ALR 407

(2005) 79 ALJR 1142

(2005) 216 ALR 1

(2019) 375 ALR 47

(2016) 253 FCR 496

(2018) 262 FCR 304

(1997) 71 ALJR 743

(2001) 206 CLR 323

(2013) 230 FCR 431

(2002) 193 ALR 449

(2004) 219 ALR 27

(2022) 403 ALR 398

(2006) 156 FCR 419

(2022) 96 ALJR 497

(2022) 400 ALR 417

(2015) 258 CLR 173

(2009) 175 FCR 515

(1995) 89 LGERA 1

(2010) 187 FCR 495

(2010) 270 ALR 293

(1986) 162 CLR 24

(2003) 236 FCR 630

(2019) 274 FCR 82

(2016) 310 FLR 1

(2019) 268 CLR 76

(2018) 258 FCR 175

(2018) 353 ALR 641

(2003) 197 ALR 389

(2024) 98 ALJR 610

(2001) 75 ALJR 1105

(2001) 180 ALR 1

(2013) 249 CLR 332

(1996) 185 CLR 259

(1996) 136 ALR 481

(1999) 197 CLR 611

(1999) 162 ALR 577

(2021) 390 ALR 590

(2004) 144 FCR 1

(2022) 276 CLR 80

(2003) 77 ALJR 454

(2000) 74 ALJR 405

(2000) 168 ALR 407

(2003) 216 CLR 473

(2003) 78 ALJR 180

(2019) 376 ALR 93

(2022) 294 FCR 1

(2018) 357 ALR 408

(2011) 85 ALJR 327

(2011) 273 ALR 223

(2010) 243 CLR 164

(2010) 84 ALJR 369

(2010) 266 ALR 367

(1980) 44 FLR 41

(1980) 31 ALR 666

(1996) 70 ALJR 568

(2005) 138 LGERA 11

(2021) 273 CLR 506

(2020) 269 CLR 439

(2020) 94 ALJR 928

(2003) 203 ALR 112

(2019) 94 ALJR 140

(2019) 269 FCR 367

(2003) 77 ALJR 1088

(2019) 268 FCR 299

(2001) 233 FCR 136

(2001) 194 ALR 244

(1997) 191 CLR 559

(1997) 144 ALR 567

(2018) 264 CLR 541

(2018) 92 ALJR 713

(2013) 87 ALJR 618

(2013) 297 ALR 225

(2011) 241 CLR 594

(2010) 85 ALJR 306

(2010) 273 ALR 122

(2010) 240 CLR 611

(1999) 73 ALJR 746

(2014) 309 ALR 67

(2021) 95 ALJR 441

(2002) 123 FCR 298

(2022) 96 ALJR 737

(2022) 275 CLR 582

(2015) 90 ALJR 197

(2015) 327 ALR 8

(2003) 211 CLR 476

(2003) 195 ALR 24

(1994) 52 FCR 437

(1994) 124 ALR 265

(2014) 317 ALR 365

(2016) 243 FCR 556

(1995) 57 FCR 451

(1995) 133 ALR 226

(2007) 232 CLR 189

(2003) 199 ALR 364

(2019) 267 FCR 200

(1986) 60 ALJR 560

(1986) 66 ALR 299

At a glance

Court

Decision date

Source

Judgment (182 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (97)