FGS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1069

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196

BDY15 v Minister for Immigration [2018] FCCA 1327

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413

CXS18 v Minister for Home Affairs [2020] FCAFC 18

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

ECE17 v Minister for Immigration and Border Protection [2019] FCCA 1223

EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153

EGY18 v Minister for Home Affairs [2019] FCCA 1874

EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 512

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299

Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210

Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47

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

Minister for Immigration and Ethnic Affairs v Guo (1997) HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481

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

Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) ALD 464

MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912

MZXLD v Minister for Immigration and Citizenship [2008] HCATrans 214

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

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

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

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

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411

SZNOE v Minister for Immigration [2012] HCASL 83

SZNOE v Minister for Immigration and Citizenship [2012] FCA 96

Tesic v Minister for Immigration and Border Protection [2017] HCASL 271

Zentai v O'Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

1. The originating application filed 9 October 2018 be dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an application for judicial review ("Judicial Review Application") filed by the applicant, FGS18, on 9 October 2018 in the Adelaide Registry of the Court. The Judicial Review Application seeks review of a decision of the Immigration Assessment Authority ("Authority Decision" and "Authority" respectively) made on 17 September 2018 which affirmed a decision made by a delegate ("Delegate's Decision" and "Delegate" respectively) of the now Minister for Immigration and Citizenship ("Minister") to refuse to grant FGS18, a Safe Haven Enterprise (Class XE) (Subclass 790) visa ("SHE Visa"). The Judicial Review Application is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) ("Migration Act"). All references to the Migration Act in these Reasons for Judgment are to the provisions of the Migration Act as they were at the time of the Authority Decision
2. At hearing the Court Book ("CB") was marked as Exhibit 1: Transcript, p 17.

1. The background to this matter prior to the Authority Decision is as follows:

(a) FGS18, a citizen of Sri Lanka, arrived on Christmas Island as an unauthorised maritime arrival on 19 November 2012: CB 119;

(b) on 17 May 2016 FGS18 applied for the SHE Visa: CB 23-61. His claims can be summarised as follows: CB 63-69:

(i) he is an ethnic Tamil from the Northern Province of Sri Lanka, which had been under the control of the Liberation Tigers of Tamil Eelam ("LTTE");

(ii) he loaned his speakers and amplifiers to the LTTE for Martyr's Day commemorations in 2003, 2004 and 2005. His name and details were written in large text on the equipment for all to see;

(iii) in January 2007 the Eelam People's Democratic Party ("EPDP**"**) paramilitary group broke into FGS18's family home late one night searching for him. They interrogated FGS18's father about the loan of equipment to the LTTE and smashed the family's belongings. FGS18 escaped and went into hiding;

(iv) when FGS18 was in hiding at a Tamil lodge in Colombo in October 2007 FGS18 and another young man were taken to the police station for questioning. FGS18 was raped by a drunken police officer in his cell. The next day FGS18 was interrogated and beaten. He was sent to jail for fourteen days, where he was mistreated. FGS18's father paid a bribe and FGS18 was released;

(v) in November 2007 FGS18 departed Sri Lanka illegally by boat. He went to India and lived there for some years;

(vi) in May 2010 FGS18 was taken to an Indonesian refugee camp. He applied to the United Nations High Commissioner for Refugees ("UNHCR") for asylum but was refused;

(vii) in October or November 2012 FGS18 travelled to Australia by boat;

(viii) in 2014 two Sinhalese men went to FGS18's parents' home searching for him; and

(ix) FGS18 suffers from mental health conditions because of his mistreatment in detention;

(c) on 18 January 2018 the Delegate refused FGS18's SHE Visa application: CB 155-170;

(d) the Delegate's Decision was referred to the Authority for review under Pt 7AA: CB 171-173; and

(e) between 13 February 2018 and 14 May 2018 FGS18, who was then legally represented, provided submissions and further information to the Authority: CB 192-421.

1. On 17 September 2018 the Authority Decision was to affirm the Delegate's Decision: CB 425-452.
2. In the Authority Decision the Authority:

(a) considered the following information as new information which satisfied s 473DD:

(i) a letter from a clinical psychologist Dr Raftery dated 10 May 2018 ("Clinical Psychologist's Letter"): CB 428-429 at [13]; and

(ii) the 2018 DFAT country information report for Sri Lanka ("2018 DFAT Report") which the Authority obtained under s 473DC: CB 430-431 at [20];

(b) on the basis that it did not satisfy s 473DD the Authority did not however consider the following to be new information to be considered:

(i) new claims and evidence contained in FGS18's statutory declaration dated 13 February 2018 ("February 2018 Statutory Declaration"): CB 426-428 at [6]-[10];

(ii) photographs attached to the February 2018 Statutory Declaration allegedly of FGS18 attending Martyr's Day events in Australia in 2016 and 2017: CB 428 at [11] ("FGS18's Photographs");

(iii) a letter from a general practitioner dated 27 February 2018: CB 428-429 at [13];

(iv) country information reports submitted on 13 February 2018 and 14 May 2018 from Human Rights Watch, the Immigration and Refugee Board of Canada, PEARL, REDRESS, Al Jazeera, and UNCHR Guidelines: CB 429-430 at [14]-[17];

(v) a country information report submitted on 3 February 2018 on Brigadier Priyanka Fernando: CB 430 at [18]; and

(vi) country information reports submitted on 13 February 2018 and 19 March 2018 concerning local elections in Sri Lanka in February 2018: CB 430 at [19]; and

(c) the Authority declined FGS18's request for an interview on the basis that he had already been provided ample opportunity to present his claims and evidence, and he did not specify what further information he proposed to give at an interview with the Authority: CB 428 at [12].

THE JUDICIAL REVIEW APPLICATION - PROCEDURAL BACKGROUND

1. The Judicial Review Application was filed on 9 October 2018 in the Adelaide Registry of the Court, together with an affidavit of FGS18 annexing a copy of the Authority Decision. There are four grounds in the Judicial Review Application which are set out at [25] (ground 1), [42] (ground 2), [61] (ground 3) and [76] (ground 4) below.
2. In May 2023 the matter was docketed to the presently presiding Judge. A directions hearing was then held on 24 May 2023 at which orders ("May 2023 Orders") were made, relevantly in the following terms:
   1. Orders 1-5 of Registrar Parkyn's orders of 7 January 2019 be set aside, and in lieu thereof order that:

a) the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 19 January 2024; > > b) the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 16 February 2024; and > > c) the matter be listed for final hearing by video link on 25 March 2024 at 10.00am AWST/12.30pm ACDT/1.00pm AEDT before Judge Lucev.

3. On 1 August 2023 FGS18 filed a further affidavit ("FGS18's Hearing Affidavit"). Apart from FGS18's Hearing Affidavit FGS18 has not filed any other material pursuant to the May 2023 Orders. Although FGS18 did not file an outline of submissions the grounds of the Judicial Review Application set out below are expansive, and contain material which is in the nature of submissions, and which the Court will treat as such. Further, FGS18's Hearing Affidavit also contains material which could be considered submissions, and to the extent that it does so, the Court has treated that material accordingly (notwithstanding that FGS18's Hearing Affidavit has been ruled inadmissible as evidence: see [10]-[23] below).
4. On 6 February 2024 the Minister filed a detailed outline of submissions. It is not necessary to set out or summarise those submissions, and it suffices to observe that the Court has taken them into account in its consideration of each of the grounds of the Judicial Review Application.

Objection to the receipt of FSG18's Hearing Affidavit

1. The Minister objected to the Court receiving FGS18's Hearing Affidavit as evidence.
2. FGS18's Hearing Affidavit commences with the following substantive paragraphs:
   1. I am providing additional documents and information to the Court about my deceased or disappeared family members.
   2. I had not provided this information to the Immigration Department at the time of the IAA Review, or the first interview, because I thought that the extent of the ill-treatment which I experienced during the civil war would sufficiently demonstrate to the Department that I sought a protection visa for legitimate reasons.
3. Thereafter, from [3]-[48] of FGS18's Hearing Affidavit FGS18 sets out the details of family members who disappeared, the family members being:

(a) a cousin who disappeared in 2009: at [3]-[10];

(b) another cousin who died in 2001: at [11]-[12];

(c) a maternal aunty who was killed in a church bombing in July 1995: at [13]-[20];

(d) a first cousin once removed who died in the same church bombing as the maternal aunty: at [21];

(e) a cousin who was killed in 1993 by the Sri Lankan Navy: at [22]-[27];

(f) a cousin who disappeared in 1991 after the Sri Lankan Navy took control of a town: at [28]-[32];

(g) a maternal cousin who disappeared after the LTTE were defeated: at [35]-[38];

(h) a second cousin who disappeared at the same time - in 1991 - as the cousin referred to at (f) above when the Sri Lankan Navy took control of a particular town: at [39]-[43]; and

(i) a maternal cousin who was killed in an air strike by the Sri Lankan military in 2009: at [44]-[48].

1. Various documents, mainly registrations of death, but also a summons to witness and a photo of FGS18 at a grave side, are annexed to FGS18's Hearing Affidavit.
2. The Minister submitted that the contents of FGS18's Hearing Affidavit were not provided to the Delegate or the Authority, and that the material was therefore irrelevant to the Judicial Review Application which is inherently confined to identifying legal error, citing MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 ("MZXLD") at [10]-[11] per Gordon J.
3. In MZXLD at [10]-[11] per Gordon J the Federal Court observed as follows:
   1. The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77-78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29]- [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
   2. Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15]- [16] (per Weinberg J).
4. In MZXLD v Minister for Immigration and Citizenship [2008] HCATrans 214 the High Court refused special leave to appeal MZXLD. Special leave to appeal to the High Court was refused on the basis that "the decision of the Federal Court in this matter was correct".
5. The reluctance to receive fresh or new evidence on appeal which was not before the original administrative decision maker was also described as "well established" in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 ("SZNOE") at [56] per Greenwood J (citing MZXLD), and an application for special leave to appeal SZNOE was dismissed by the High Court: SZNOE v Minister for Immigration [2012] HCASL 83 at [8]- [9] per Heydon and Bell JJ.
6. In BDY15 v Minister for Immigration [2018] FCCA 1327 ("BDY15") at [12] per Judge Lucev the then Federal Circuit Court observed that:

It is not open to the Court to admit new evidence or materials from the applicant for the purpose of asking the Court to disagree with a factual conclusion reached by the administrative decision-maker, and where the Court does admit such evidence it will engage in impermissible merits review: Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 ("Tesic") at [53]-[55] per Reeves, Robertson and Rangiah JJ, contrary to the long-standing principle arising from Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (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. On the basis that what is actually sought by the applicant is merits review of the ITOA (and arguably also the Delegate's Decision from 2014): see [14]-[17] below, the Court cannot therefore consider the substantive material in the Applicant's Affidavit...

1. Essentially the same view as expressed in BDY15 was expressed in AML18 v Minister for Immigration [2020] FCCA 525 ("AML18 - FCCA") at [82] per Judge Kendall where the then Federal Circuit Court observed that:

The Court ought not to take into consideration materials which post-date the IAA's decision: WZATI v Minister for Immigration & Border Protection [2015] FCA 923. It is also apparent that the purpose of providing these materials was to invite the Court to disagree with the IAA's decisions and findings of fact: Tesic v Minister for Immigration [2017] FCAFC 93 at [55]. Were the Court to do so, it would be engaging in impermissible merits review.

1. An appeal to the Federal Court by AML18 against AML18 - FCCA was unsuccessful: AML18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 28 at [27]- [29] per McKerracher J.
2. No question of law arises in relation to the new evidence in FGS18's Hearing Affidavit: MZXLD at [11] per Gordon J, for reasons explained below in relation to ground 1 there was no denial of procedure fairness so that issue does not arise, and otherwise the matters referred to in FGS18's Hearing Affidavit are simply alleged facts.
3. The matters of alleged facts the subject of FGS18's Hearing Affidavit relate to factual matters which occurred in the period from 1991 to 2009 in Sri Lanka which FGS18 deliberately chose not to disclose to the Department, the Delegate, or the Authority. Patently the purpose of admitting FGS18's Hearing Affidavit into evidence on the Judicial Review Application can only be to seek to have the Court remake existing findings of fact by the Authority, or to make original findings of fact, in relation to the factual matters which were to be determined by the Authority. Such a course is not permissible upon judicial review: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47 ("Tesic - FCAFC") at [55] per Reeves, Robertson and Rangiah JJ (from which an application for special leave to appeal was refused by the High Court: Tesic v Minister for Immigration and Border Protection [2017] HCASL 271 at [1] per Bell and Nettle JJ); MZXLD at [10] per Gordon J; BDY15 at [12] per Judge Lucev; AML18 - FCCA at [82] per Judge Kendall, and were the Court to do so it would be engaging in impermissible merits review, contrary to longstanding principle: 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. The High Court has recently reinforced that longstanding principle with its observation that the "line between judicial review and merits review ... must be maintained": LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 512 at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, an observation which reflects the rigorously policed line between merits review and judicial review which lies at the heart of Australian administrative law: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v O'Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J.
4. In the circumstances, the Court therefore finds FGS18's Hearing Affidavit inadmissible in its entirety.

CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION

1. For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error: ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. The error must be material to be jurisdictional: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) ALD 464 ("MZAPC") at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

1. The Applicant was denied procedural fairness.

The Applicant's Statutory Declaration of 13/02/18 contains new claims and evidence not previously disclosed. The Reviewer erred by failing to consider all of these claims, which were relevant material, as the Applicant stated his claims for protection in significantly more detail and attempted to explain why he did not provide them earlier. The Reviewer has also denied the Applicant procedural fairness by accepting the existence of the Applicant's mental health issues but failing to consider the impact of these issues on the Applicant's ability to disclose to the Department without hesitation the extent of his LTTE affiliation.

The Reviewer has denied that the torture and rape endured by the Applicant in his home country amounted to persecution. The Reviewer was willing to accept that the Applicant endured torture and rape in an environment which she characterised as highly militarised and shrouded with "suspicion and repression", yet failed to find the actions of police officers toward the Applicant persecutory. The Reviewer was aware of confirmatory country reports from various sources, including DFAT, which note the use of torture, including sexual torture, by military and police personnel against Tamils with suspected LITE affiliation both during and after the civil war. The Reviewer acknowledged that the Applicant submitted country information detailing continued human rights abuses against Tamils with imputed political support for the LTTE, yet did not agree that the torture and rape was inflicted on the Applicant was discriminatory as they failed to conclude that he was arrested on suspicion for LTTE involvement or support. The reviewer reached their conclusion having decided not to consider the Applicant's new claims and evidence and has therefore denied the Applicant procedural fairness.

The Reviewer overlooked the risks to the applicant's mental health if Sri Lankan authorities, during the returnee proceedings, impute him with political opinion as an LTTE supporter and subject him to physical or mental mistreatment or torture. As a result, the Reviewer refused to acknowledge that the Applicant is owed complementary protection on the basis that there is a real risk that he suffer a repeat of the serious harm experienced previously. This is despite the Reviewer acknowledging that the Applicant may be subject to questioning or investigation beyond what is accepted as normal for returnees.

1. Ground 1 is framed as a denial of procedural fairness ground.
2. Division 3 of Pt 7AA, read with ss 473GA and 473GB, is an exhaustive statement of the requirements of the natural justice hearing rule for the purposes of the Authority's review power: s 473DA; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 ("CRY16") at [67] per Robertson, Murphy and Kerr JJ. In Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526; (2018) 357 ALR 474 ("DZU16") at [99] per Robertson, Murphy and Kerr JJ the Full Court of the Federal Court observed that a procedural fairness analysis is not the "correct perspective" and that "there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed" but that legal unreasonableness is the proper frame for consideration: CRY16 at [67] per Robertson, Murphy and Kerr JJ; DZU16 at [99] per Robertson, Murphy and Kerr JJ. The particulars to ground 1 do not establish, or indeed refer to, any procedural irregularity in the Authority's Decision or in the Authority's decision-making process. The Authority adopted orthodox procedures consistent with the proper exercise of its powers to conduct a review under Pt 7AA. Absent any breach of the legislative requirements set by Pt 7AA, FGS18 cannot demonstrate any procedural unfairness. As to unreasonableness (and also illogicality which is raised by ground 3 below) the Court observes that:

(a) for the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: 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 [130], [131] and [135] per Crennan and Bell JJ;

(b) SZMDS sets a very high threshold for finding illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish illogicality: SZMDS at [131] per Crennan and Bell JJ, and that for jurisdictional error to be found a finding must reach a threshold of "extreme illogicality": DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 ("DAO16") at [4] and [30] per Kenny, Kerr and Perry JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 ("ARG15") at [47] per Griffiths, Perry and Bromwich JJ, in the sense that "no rational or logical decision maker" could make the finding in question: SZMDS at [130] and [135] per Crennan and Bell JJ; and

(c) the factual findings of the Authority must be rationally made and based on probative material and logical grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 ("CQG15") at [40]-[55] per McKerracher, Griffiths and Rangiah JJ.

1. In ground 1 FGS18 takes issues with a number of matters in the Authority Decision, as follows:

(a) a failure to consider the February 2018 Statutory Declaration;

(b) a failure to consider whether FGS18's mental health issues impacted on his ability to disclose his claims to the Department;

(c) finding that FGS18 had experienced sexual assault "yet failed to find the actions of police officers toward FGS18 persecutory";

(d) a failure to consider various country information reports;

(e) overlooking the risks to FGS18's mental health if the Sri Lankan authorities impute him with pro-LTTE opinion; and

(f) finding that FGS18 did not satisfy the complementary protection criterion despite accepting that he would be subject to questioning or investigation "beyond what is accepted as normal for returnees".

1. The Authority did not consider the February 2018 Statutory Declaration because it did not meet s 473DD: CB 427-428 at [8]-[9]. The Authority found that the information in the February 2018 Statutory Declaration:

(a) could have been provided to the Delegate;

(b) was inconsistent with FGS18's other evidence; and

(c) was not capable of being believed given that FGS18 "now so belatedly" raised what would otherwise appear to be very central claims: CB 427-428 at [9].

1. The Authority also found that there were no exceptional circumstances to justify the consideration of the February 2018 Statutory Declaration: CB 428 at [10].
2. Because the Authority was not satisfied that the February 2018 Statutory Declaration met s 473DD it was prohibited from considering it: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 ("Plaintiff M174/2016") at [31] per Gageler, Keane and Nettle JJ. There was no error in this regard in the Authority's approach, and it was not unreasonable nor illogical for the Authority not to have regard to material it was prohibited from considering.
3. As to the Authority's consideration of why FGS18 did not disclose his claims to the Department more fully, the Authority specifically found that apart from his sexual assault claim FGS18 "demonstrated no difficulties providing information to the Department": CB 427-428 at [9]. FGS18 made no claim as to the impact of any mental health condition on his ability to disclose the sexual assault claims and it was for that reason there was no consideration of the issue by the Authority. FGS18's submission to the Authority (prepared by his then legal representative) as to why the new information was not previously provided to the Department explained that FGS18 thought his case was "so strong, and being generally reluctant to give much detail, did not consider it relevant": CB 194 at [7]. FGS18's submission plainly provides alternative rationales for FGS18's failure to provide further information about his claims, namely, that he:

(a) first, thought he had a strong case;

(b) second, was generally reluctant (but not expressly reluctant on mental health grounds) to provide much detail; and

(c) third, did not consider it to be relevant.

1. FGS18 appears to have made a deliberate choice not to disclose his sexual assault claims, and to have done so in circumstances where he had been told on a number of occasions about the necessity to make full disclosure: CB 427 at [8]. Because FGS18, who was legally represented at the time, and whose legal representative provided detailed submissions to the Authority, said nothing as to his mental health being a barrier to the presentation of his claims, the Authority was not required to consider claims not made: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J.
2. The Authority applied the correct test in relation to whether FGS18 had a well-founded fear of persecution despite accepting that he had been sexually assaulted by a police officer: CB 435-436 at [30]. The Authority's conclusion that FGS18 would not face any harm upon return was informed by:

(a) its rejection of the factual bases of some of FGS18's claims; and

(b) country information which noted the significant improvement in the security situation in Sri Lanka: CB 437 at [36].

1. The Authority did consider whether, upon return to Sri Lanka, FGS18 would face a "real chance of harm now or in the reasonably foreseeable future": CB 446 at [61]. That is applying a forward-looking inquiry (whether a person will face a real chance of serious harm) rather than a backward looking one (whether a person has been persecuted in the past). The Authority's reasoning was consistent with well-established legal principles. The assessment of whether there is a real chance that a person will be persecuted for Convention reasons if returned to the receiving country "necessitates speculation in the sense of prediction, in other words, an assessment of the future": Wu Shan Liang, CLR at 277 per Brennan CJ, Toohey, McHugh and Gummow JJ, commenting on the application of the test previously propounded in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412. The real question is therefore whether there has been a forward-looking or prospective assessment as to the real chance of persecution if FGS18 were to be returned to Sri Lanka.
2. The essence of the real chance test is that it is forward-looking, and in that sense it is predictive. It requires an assessment of the chance of harm in the reasonably foreseeable future on the basis of probative material, and not pure guess work. In this case the Authority at CB 437-446 at [35]-[60] dealt in detail with the material put before it, and considered country information, in relation to FGS18's circumstances before summarising its conclusions (including the matters to which it had regard) at CB 446 at [61] as follows:

Apart from some low-level societal discrimination and routine monitoring (which would not amount to serious harm) I am not satisfied that upon return to Sri Lanka the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of being a Tamil, from ... [city name deleted] with time spent in former LTTE-controlled areas, his gender, his age, his former extremely low-level link to the LTTE, his links with his local Tamil community in Australia and attendance at their Heroes Day memorial events, that he would be a returnee from the west, or his asylum application in Australia. Nor am I satisfied that the applicant's life experiences and mental health issues are such that he would suffer serious harm. Even when his claims are considered cumulatively I do not accept the applicant has a well-founded fear of persecution in Sri Lanka.

1. In relation to the country information FGS18 alleges that certain country information was not considered by the Authority. That was because that country information did not satisfy either limb of s 473DD: CB 429-430 at [15]-[19]. The choice and weight to be given to country information was otherwise a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]- [14] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ. The Authority already had detailed country information before it, and in circumstances where the choice and weight to be given to country information was a matter for the Authority it is difficult to see how any error might have been material: 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; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
2. Contrary to FGS18's claims, the Authority did have regard to FGS18's mental health: CB 441-442 at [45]. The Authority did not however consider whether FGS18's mental health would deteriorate if he were imputed with an adverse political opinion because it found that FGS18 would not be imputed with such an opinion: CB 438 at [37]. The Authority was not required to make findings contrary to its own conclusions or "speculate about the unknown future": EGY18 v Minister for Home Affairs [2019] FCCA 1874 ("EGY18") at [89] per Judge Driver (an appeal against EGY18 was dismissed_: EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs_ [2020] FCA 796); ECE17 v Minister for Immigration and Border Protection [2019] FCCA 1223.
3. With respect to the returnee processing procedures and the complementary protection criterion, the alleged factual foundation of this ground is not made out. In the Authority Decision the Authority:

(a) at CB 444-445 at [56] the Authority found that:

I am not satisfied that any questioning, brief detention during processing at the airport or during procedures under the I&E Act, or fine or possible travel cost that the applicant may be subject to would reach the necessary level of being a threat to his life or liberty, significant physical harassment or ill treatment, or would otherwise constitute serious harm under s.5J(5) of the Act. In reaching this conclusion I have had regard to the nature and gravity of the possible brief loss of liberty and other potential penalties, and considered the applicant's personal circumstances. Whilst I accept that the applicant might feel fear and stress at these returnee proceedings and find it difficult, he has received and benefitted from counselling and therapy to manage his symptoms and future stressors, and, as previously discussed, the evidence before me does not support that the applicant would not be able to undertake this standard and routine process or that he would be denied any treatment if any were required. I have found he has no adverse profile in Sri Lanka. In all the circumstances, I do not consider a brief period of detention to which the applicant may be subject, even having regard to general detention conditions, would amount to serious harm for the applicant. Similarly, I do not consider any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the I&E Act, or any travel costs to constitute serious harm.

Furthermore, country information states that all involuntary returnees are subject to the airport questioning and processing procedures on return and that all persons who depart Sri Lanka illegally are subject to the I&E Act on return and that the procedures and law are not discriminatory on its terms. In this case, the evidence also does not support a conclusion that the procedures and law are selectively enforced or applied in a discriminatory manner. I find that the airport processing, and the investigation, prosecution and punishment of the applicant under the I&E Act would be the result of laws of general application and do not amount to persecution for the purpose of s. 5J(1) of the Act.

I have accepted that on return to Sri Lanka the applicant may be investigated and detained at the airport, potentially detained temporarily for a number of days pending bail on an I&E Act prosecution, and then imposed with a fine. I am not satisfied that the treatment the applicant will experience upon return to Sri Lanka amounts to significant harm. The investigation (including background checks and questioning) of the applicant, and subsequent detention, is for the purpose of establishing his identity, obtaining security and criminal checks clearance and then waiting for a magistrate to authorise his release and bail to be processed. I take into account the applicant's mental health symptoms of depression anxiety and stress and accept that he might experience stress and fear during these procedures, however I have found that the medical evidence does not support that he would not be able to undertake these procedures. Based on the country information I am not satisfied that there is a real risk of the applicant being subjected to mistreatment whilst in custody. Importantly, I am not satisfied that the acts or omissions of the Sri Lankan officials during this process, including the questioning, detention and imposition of a fine, or otherwise on return to Sri Lanka are intended to inflict severe pain or suffering, pain or suffering which could reasonably be regarded as cruel or inhuman, or to cause extreme humiliation, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in s.5(1) the Act. The treatment does not consist of the death penalty or arbitrary deprivation of life or torture. I find that this treatment does not amount to significant harm within the meaning of s.36(2A).

1. The Authority Decision did not find that FGS18 would be subjected to questioning or investigation beyond what is accepted as normal for returnees. Rather, the Authority:

(a) described the general returnee processes which were the result of laws of general application: CB 444-445 at [56]-[57]; and

(b) found that the general returnee processes would be used for the purpose of establishing FGS18's identity and obtaining security and criminal check clearances: CB 447 at [65].

Those findings were open to the Authority and no error is revealed.

1. None of the matters with which FGS18 took issue in ground 1: see [28] above, have been made out. In essence, what FGS18 seeks in ground 1 is impermissible merits review of the Authority Decision. It follows that ground 1 is not made out and does not establish jurisdictional error in the Authority Decision.

1. Ground 2 of the Judicial Review Application is as follows:

2. The Reviewer ignored relevant material provided by the Applicant.

The Reviewer accepted that there are exceptional circumstances to justify considering the letter from Dr. Raftery concerning the applicant's worsened mental health symptoms but has disregarded the relevant details of that letter and their implications. This is despite accepting Dr. Raftery's opinion that the Applicant's torture and rape by Sri Lankan police officers, as well as the uncertain process of claiming asylum, have produced his mental health issues. The reviewer has attempted to disregard the severity of the Applicant's mental health issues on the basis that another letter provided to the Department from the STTARS counsellor seemed to advocate on behalf of the Applicant. As such, the Reviewer has disregarded the implications of Dr. Raftery's letter, which have been provided by a qualified healthcare professional, and in doing so has ignored relevant material.

The Reviewer disbelieved the Applicant's claim that his sister's wife was an LTTE cadre who disappeared and is presumed deceased on the basis of lack of detail, which is unreasonable, particularly as the Applicant provided some details about her in the SHEV interview.

In connection, the Applicant explained in his Statutory Declaration that there are still aspects of his story that he has not disclosed to the Department due to fear but the IAA Reviewer did not enquire about these and in doing so has ignored relevant information.

1. In ground 2 FGS18 asserts that the Authority failed to consider:

(a) the Clinical Psychologist's Letter which was accepted as new information by the Authority: CB 428-429 at [13];

(b) the severity of FGS18's mental health condition;

(c) FGS18's claim about his sister's wife being an LTTE cadre who disappeared and was presumed dead;

(d) information in the February 2018 Statutory Declaration concerning FGS18's claims; and

(e) relevant information because it failed to consider whether to interview FGS18 in relation to undisclosed claims.

1. The Clinical Psychologist's Letter was expressly considered by the Authority at CB 441-442 at [45] where the Authority referred to:

(a) the Clinical Psychologist's Letter as to FGS18's mental health symptoms as being "at severe levels";

(b) the Clinical Psychologist's Letter stating that FGS18's experiences "would constitute a basis for a diagnosis of post-traumatic stress disorder" but "no official diagnosis" was "in the material" before the Authority;

(c) the Clinical Psychologist reporting that the refusal decision had "reactivated most of his [FGS18's] symptoms", increasing his anxiety, and that FGS18 was at risk of deterioration;

(d) the Clinical Psychologist's opinion that FGS18 "may relapse or be re-traumatised if returned to Sri Lanka";

(e) the fact that the Clinical Psychologist "had only one assessment" with FGS18 "expressly for the purpose of seeking an opinion in response to a decision to refuse the visa application";

(f) the Clinical Psychologist's Letter to which it gave "careful consideration" but noted that the "exacerbated symptoms are largely self-reported";

(g) the Clinical Psychologist referring to FGS18's previous self-harm attempt and suicidal ideation; and

(h) the fact that FGS18's long time counsellor had not noted suicidal ideation and described the past self-harm behaviours as "punching the wall".

1. In circumstances where the Authority referred so extensively to the Clinical Psychologist's Letter and expressions of opinion it cannot sensibly be inferred that the Authority failed to consider the Clinical Psychologist's Letter.
2. In relation to the alleged failure to consider the severity of FGS18's mental health condition the Authority, at some length, set out the content of the Clinical Psychologist's Letter, and observed that the Clinical Psychologist had reported that the symptoms were at "severe levels", and that the decision to refuse FGS18 a SHE Visa had "reactivated most of his symptoms", increased his anxiety, and put him at risk of deterioration. The Authority Decision notes that FGS18 reported to the Clinical Psychologist that "he fears reverting to the 'madness'" that he had earlier experienced in Indonesia and Australia, and that he experienced symptoms "including insomnia, mental confusion, social phobia, agitation, anger, depression, suicidal ideation and low self-worth". The Authority goes on to acknowledge the Clinical Psychologist's qualifications and experience, his access to FGS18's general practitioner's notes, and the notes of a counsellor and a support family. The Authority then, at CB 441-442 at [45], notes that:

(a) FGS18 "had only one assessment ..., expressly for the purpose of seeking an opinion in response to a decision to refuse the visa application";

(b) FGS18's had "previously refused to see any mental health doctor and only decided to do so after the refusal decision";

(c) it did not doubt FGS18 desired to stay in Australia and was "disappointed and distressed at being refused a protection visa";

(d) it had given the materials, which included the Clinical Psychologist's Letter, and a doctor's letter and a letter from a counsellor "careful consideration but note that the descriptions of exacerbated symptoms are largely self-reported" by FGS18; and

(e) the Clinical Psychologist had referred to a previous self-harm attempt and experience of suicidal ideation by FGS18, but that FGS18's "long-time" counsellor "had made no reference to any suicidal ideation and described the past self-harm behaviours as punching the wall, nor did he refer to it any "madness" experienced earlier".

1. Having set out the above matters the Authority went on to observe at CB 441-442 at [45] that:

These factors and a degree of advocacy on behalf of the applicant to be accorded refugee protection in the Sttars [counsellors] report, that raises some concern regarding impartiality of the report, temper somewhat the weight I place on the opinions regarding exacerbated symptoms and risks of relapse or re-traumatisation.

1. In the Authority Decision at CB 442 at [47] the Authority went on to find that:

The medical reports do not describe any medications prescribed for the applicant for current or future need. I note that he has benefitted from and improved his condition with counselling designed to help him cope with past trauma and future stressors, and this would mitigate against any societal prejudice he might encounter against seeking treatment he might require in Sri Lanka for mental health issues. Support was recognised by Dr Raftery as a factor that contributed to his health improvement and I note that absence from his family was a contributor to the applicant's mental health condition and a strong desire to reunite with them. The applicant has his family to return to in Sri Lanka, including his wife, parents and siblings who all live in his home area. There is no evidence before me that there would be no assistance or support extended to the applicant from his family members.

1. In the Authority Decision at CB 443 at [49] the Authority said that there was no medical evidence indicating that FGS18 had any future requirement for any particular medication or treatment for his medical health symptoms that would not be able to be provided to him in Sri Lanka.
2. Having regard to the matters considered by the Authority in relation to FGS18's mental health condition set out at both [44] and [46]-[48] above, it is plain that the Authority did have regard to the severity of FGS18's mental health conditions.
3. The claim about FGS18's wife's sister being an LTTE cadre was considered, and rejected, by the Authority at CB 433 at [24]. It was rejected because the claim was only raised for the first time at the SHE Visa interview with the Delegate and because it was not supported by any credible or detailed evidence. That reasoning was rational, reasonable and open to the Authority. In that regard the Court observes that the Authority was not required to uncritically accept all or any of the claims made by FGS18, or to have rebutting evidence before it could decide not to accept FGS18's claims: Minister for Immigration and 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 v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; 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] FCA 1105; (1994) 34 ALD 347, ALD at 348 per Heerey J). For those reasons the claim that FGS18's wife's sister being an LTTE cadre was not considered is not made out.
4. In relation to the February 2018 Statutory Declaration the Authority was not required to consider it after it found that it did not meet s 473DD: see [29]-[30] above; Plaintiff M174/2016 at [31] per Gageler, Keane and Nettle JJ.
5. In relation to whether the Authority failed to consider relevant information because it failed to consider whether to interview FGS18 in relation to undisclosed claims the Court notes that, having regard to the statutory scheme, the Authority makes its decisions "on the papers" and without any duty to get new information. The circumstances in which the Authority will be held to have unreasonably failed to exercise its power under s 473DC(1) to get new information requires a high threshold: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212 ("DUA16") at [26]-[27] and [34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. The primary position with respect to reviews under Pt 7AA is that they are conducted on the papers, and that no further (or new) information need be obtained, whether by way of written or oral evidence (including interviews) or written or oral submissions, unless exceptional circumstances exist: DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. The discretion in s 473DC(1) to get new information is however conferred subject to the implied condition that it is exercised reasonably: Plaintiff M174/2016 at [21] per Gageler, Keane and Nettle JJ; 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 [3] per Kiefel CJ, Bell, Gageler and Keane JJ.
6. In the February 2018 Statutory Declaration at [48] FGS18 said that:

There are still some parts of my story that I have been unable to explain even now, as I find it too hard to talk about. If I am invited to an interview with the IAA I may be able to expand more on the new information I have provided, and the remainder of my story.

1. At CB 428 at [12] the Authority determined not to interview FGS18 in circumstances where the Authority:

(a) acknowledged that FGS18 had said that he "may" be able to provide more information;

(b) summarised the effect of the relevant statutory provisions which it observed did not provide for a "right" to a hearing before it;

(c) noted that FGS18 had:

(i) provided written submissions and the February 2018 Statutory Declaration in support of his claims;

(ii) presented his claims to the Department and been interviewed with full opportunity to present his claims at the interview, at which he was represented; and

(iii) not provided written submissions subsequent to the SHE Visa Interview, despite having been afforded the opportunity to do so;

(d) said it had had regard to all the review material, and to new information which met s 473DD;

(e) was satisfied that FGS18 had "had ample opportunities to present his claims and supporting evidence"; and

(f) noted that FGS18 "does not articulate what information he would further provide, if invited, that he has not already had the opportunity to give, or why it would be more appropriately provided at an interview rather than in writing, or what exceptional circumstances would warrant an interview or consideration of that information".

(a) noted that FGS18 had claimed at both his Irregular Maritime Arrival Interview ("Arrival Interview") and SHE Visa interview that the claimed sexual assault was "too distressing to discuss";

(b) said that there was evidence before the Authority regarding the physical and sexual assault of FGS18 when he was in detention in October 2007; and

(c) said it was willing to accept that FGS18 had "suffered a sexual assault from a drunken officer on the night he [FGS18] was arrested" and that FGS18 was hit and kicked the next morning when he was questioned.

(a) the current circumstances are dissimilar to those in ABT17 where the Authority rejected a claim that had been accepted by a delegate on credibility grounds;

(b) there was no denial of an opportunity to respond to prejudicial adverse information: compare Plaintiff M174/2016 at [47] and [49]-[50] per Gageler, Keane and Nettle JJ; and

(c) FGS18's submissions do not explain why the Authority's reasoning in relation to the refusal to interview was legally unreasonable.

1. Merely because FGS18 now says that his account was inadequate and that he was not able to fully explain himself does not render the Authority's not interviewing him legally unreasonable. It is apparent that FGS18 provided an account at earlier interviews of the sexual assault when he was in detention in October 2007, and that that account was sufficient for the Authority on review to accept FGS18's claim that he had been sexually assaulted.
2. In circumstances where the Authority has had regard, in particular, to the:

(a) statutory provisions which do not give a right to an interview by the Authority;

(b) multiple opportunities FGS18 had had to provide information both in person and in writing;

(c) lack of indication that any new information might be provided if FGS18 were to be interviewed by the Authority; and

(d) acceptance by the Authority of the fact of the sexual assault of FGS18 whilst held in detention in October 2007,

the Court considers that legal unreasonableness has not been demonstrated in relation to the refusal to interview FGS18. The decision not to interview FGS18 was, in all the circumstances, a rational decision open to be made on the evidence before the Authority, and does not establish error in the Authority Decision: SZMDS at [130], [131] and [135] per Crennan and Bell JJ; CQG15 at [40]-[55] per McKerracher, Griffiths and Rangiah JJ.

1. It follows that ground 2 is not made out and does not establish jurisdictional error in the Authority Decision.

1. Ground 3 of the Judicial Review Application is as follows:

3. The Reviewer drew conclusions on the basis of illogical argumentation.

The Reviewer discounted the Applicant's claim that he was released from jail due to his father having payed a bribe to the Sri Lankan police. Subsequently, the Reviewer decided that the Applicant was not a person of interest to the police on the basis of his ethnicity and suspected LTTE involvement. The Reviewer's decision is illogical as it is predicated on a falsity that the Applicant's father could not have physically travelled between ... [City A] and ... [City B] twice in order to secure a land sale within a timeframe of eleven or fourteen days.

The Reviewer found it illogical that the applicant sough to protect A's identity yet could have provided the details of A to the delegate in an anonymised fashion earlier. The Reviewer's argument is flawed, as it assumes that the applicant was aware that it was permissible to submit claims concerning individuals in an anonymised fashion earlier and that the Department would seriously consider claims submitted in this manner.

The Reviewer incorrectly concluded that the Applicant exaggerated his LTTE association in the SHEV interview in order to increase the prospects of being granted a protection visa. The Reviewer argued that as the Applicant had received professional advice from RACS during the application process, he should have made his political affiliations known to the Department earlier. This is illogical, however, as the Reviewer failed to acknowledge that the reason why the Applicant did not relay the relevant facts earlier was due to his own mental anxieties, namely that he protect the identity of person A, and that if he had disclosed all of his personal information to the Department, he would receive negative regard from them on the basis of his LTTE affiliation.

The Reviewer incorrectly concluded that the Applicant was of no interest to the EPDP and subsequently disbelieved that the EPDP broke into his family home and that he had to flee ... [city name deleted] due to this event. The Reviewer disbelieved his claims on the basis that the EPDP should have acted against the applicant earlier than in 2007, yet logically the EPDP would act against him whenever it was established by them that he was a person of interest, particularly as the EPDP surveyed the ...[city name deleted] population not independently but in cooperation with government intelligence forces, yet this fact was acknowledged by the Reviewer.

The Reviewer found the anti-Sri Lankan sentiments expressed by the Applicant during the SHEV interview to be incredulous and disingenuous, even though they had accepted that he endured physical assault and rape at the hands of Sri Lankan officers, which is flawed logic. The Reviewer has relied upon flawed logic and irrelevant considerations to discount the Applicant's claimed political views as an LTTE supporter.

1. In ground 3 FGS18 submits that the following findings made by the Authority were illogical:

(a) its rejection of FGS18's narrative about his father's payment of a bribe to secure his release, which involved him travelling between City A and City B in a short period of time;

(b) its concerns with FGS18's failure to mention his claims about an LTTE cadre, "A";

(c) its failure to acknowledge that certain claims were not raised earlier because of FGS18's "mental anxieties";

(d) its finding that if the EPDP had an interest in FGS18, EPDP would have taken action against him prior to 2007; and

(e) its rejection of FGS18's evidence at the SHE Visa interview that he had links to the LTTE.

1. In addition to what is said at [27(a) and (b)] above concerning illogicality the Court notes that where illogicality or irrationality complaints are made the limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304 ("Plaintiff M1/2021") at [26] per Kiefel CJ, Keane, Gordon and Steward JJ, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; CLR at 40 per Mason J.
2. The Authority's rejection of the narrative about FGS18's payment of the bribe was based on a number of factors set out at CB 434 at [27] including that:

(a) another man arrested with FGS18 was also released by the Sri Lankan court on the same day and on the same basis as FGS18, and there was no credible evidence before the Authority that FGS18's father knew the other man or paid for his release;

(b) FGS18 claimed his release obtained by way of a bribe paid to the police came with a warning from the police to leave Sri Lanka, but that that was not consistent with FGS18 having then waited for a week in the city in which the case was conducted for certified copies of court documents that he had requested, the Authority finding that this was implausible;

(c) it was implausible that FGS18's father could travel long distances in a short timeframe and raise money by selling his land while traversing a complicated route to and from a major city in Sri Lanka; and

(d) the Authority found that the evidence of these matters lead it to not accept that FGS18 was released from detention because FGS18's father had paid a bribe.

1. Based on the evidence referred to at CB 434 at [27] and summarised in the previous paragraph the conclusion reached by the Authority was one which was open to it, and was one that was not so extreme that no rational or logical decision-maker could make it: DAO16 at [4] and [30] per Kerr, Kenny and Perry JJ; ARG15 at [47] per Griffiths, Perry and Bromwich JJ; SZMDS at [130] and [135] per Crennan and Bell JJ.
2. The Authority's concerns with FGS18's failure to mention his claims about an LTTE cadre "A" were not just based on the fact that FGS18 could have mentioned "A" in an anonymised form (although this was one of the Authority's concerns with FGS18's explanation for not mentioning his links to "A" earlier). The Authority was also concerned that:

(a) when asked at Arrival Interview whether he had any involvement with any political organisation FGS18 answered "no": CB 427 at [9];

(b) the claim relating to "A" was inconsistent with FGS18's other claims; and

(c) the claim was raised at a late stage of the SHE Visa application process.

1. The above matters, together with FGS18's not mentioning "A" in an anonymised form, were a logical and rational basis for the Authority's concerns about FGS18's failure to mention his claims about "A" at an earlier stage in the SHE Visa process, and another decision-maker could well have made the same decision on the same facts, and there was therefore no illogicality in this respect: DAO16 at [4] and [30] per Kerr, Kenny and Perry JJ; ARG15 at [47] per Griffiths, Perry and Bromwich JJ; SZMDS at [130] and [135] per Crennan and Bell JJ.
2. The Authority did not need to consider FGS18's "mental anxieties" as a basis for not raising various claims earlier because FGS18 did not submit that his "mental anxieties" were a reason for the evolving nature of his claims. The Authority is not required to consider a claim that was not put before it: see [33] above (and the authorities there cited). It follows that there was no illogicality in this respect.
3. The Authority's reasoning that if the EPDP were interested in FGS18, bearing in mind his home area was under the control of government forces since 1996, the EPDP would have taken action against FGS18 before 2007 is not illogical, and was a finding open on the evidence to be made by the Authority. In any event, the Authority:

(a) also rejected that the EPDP was interested in FGS18 given there was "no credible evidence" to corroborate that claim: CB 434 at [25]; and

(b) had earlier found that FGS18 and his family members were not LTTE members and had minimal interaction with the LTTE, and that that interaction ceased in 2005: CB 433 at [25].

1. It follows that the Authority's reasoning with respect to the EDPD's interest in FGS18 was not such that no rational or logical decision-maker could have made the finding in question: SZMDS at [130] and [135] per Crennan and Bell JJ.
2. In relation to the Authority's findings with respect to FGS18's links to the LTTE FGS18 says that the Authority relied upon flawed logic and irrelevant considerations to discount FGS18's claimed political views as an LTTE supporter. In the Authority Decision the Authority:

(a) found that FGS18 gave contradictory evidence about his LTTE support or connections, noting that:

(i) at the SHE Visa interview his evidence was that he had always been a supporter of the LTTE and did a lot to help them, including loaning them his speakers for free (for the Martyr's Day events);

(ii) the claim was contrary to claims and submissions made to the Delegate by his former legal representatives, to the effect that he only agreed to allow the LTTE to use the speakers and did not charge them because he was afraid to refuse them and because the process of obtaining payment would expose him to appearing to be involved with the LTTE, and that he did not want the LTTE to keep using his business; and

(iii) when asked at the Arrival Interview whether he or his family had any involvement or association with any political group or organisation he answered "No": CB 433 at [24];

(b) acknowledged that FGS18 was from "the original Tamil heartland": CB 433 at [24];

(c) did not accept from the evidence that he or any family member was an active LTTE supporter or member, and found that he hired the speakers to the LTTE in the course of his business during the ceasefire period because they requested it and he was afraid to refuse them, and was afraid to charge them for the hire: CB 433 at [24];

(d) found that FGS18's involvement (and that of his family members) was "extremely low-level, minimal interaction of three occasions of hiring sound equipment to them by his business during the cease-fire accord": CB 433-434 at [25];

(e) in relation to FGS18's detention in October 2007 the Authority at CB 435 at [28] observed that:

The applicant's evidence was that his interrogator asked about why he was in ... [name of major city deleted] and generic questions about his background and about any LTTE involvement. There is no evidence that his activities hiring sound equipment in ... [name of city deleted] were raised. Country information indicates that during the conflict many young Tamil men were reportedly harassed, arrested and detained for questioning, with suspected LTTE support sometimes imputed simply on the basis of ethnicity and origins because most LTTE supporters and members were Tamils, and that Tamils staying in temporary lodgings in ... [name of major city deleted] were particularly monitored and at risk of arbitrary arrest or during cordon and search operations and could be detained for questioning for failing to register with police on arrival or about their presence in ... [name of major city deleted]. I find that the applicant was taken for routine questioning and was detained for his identity and credentials to be checked, as occurred to many young Tamil men at that time simply because he was a young Tamil male temporarily in ... [name of major city deleted] during the increasing conflict of the civil war, and not because of the applicant's particular history of activities in ... [name of city deleted] or elsewhere. Many LTTE suspects were arrested under the Prevention of Terrorism Act and were held for very prolonged periods before appearance before court if any. On the contrary, that the applicant's case was put before the court the day after his arrest under the Code of Criminal Procedure Act No15 of 1979 and that he was released at the next court-ordered appearance, strongly indicates that that the authorities did not hold any strong suspicion of the applicant as having any LTTE involvement. This is reinforced by the applicant's evidence that his interrogator finally said he did not know why the applicant had been detained. I find that the applicant was released by the court, for lack of evidence, after the routine further enquiries of the police during the remand period cleared him of suspicion of being in ... [name of major city deleted] for any unlawful reason. I do not accept that his father paid a bribe for his release. I do not accept that the police warned him to leave Sri Lanka for his safety or that they would look for him again. I consider that the applicant embellished his claims of his detention and release. I do not accept that the authorities had any adverse interest in the applicant as a suspected supporter of the LTTE, or for any other reason, arising as a result of his arrest or after his release.

(f) referring to the UNHCR's 2012 Eligibility Guidelines found that it was not satisfied that FGS18's occasional business hire of sound equipment to the LTTE during the ceasefire period comes within any of the categories listed in the guidelines for refugee protection: CB 437-438 at [37], and that there was no credible evidence to show that FGS18 fell within any of the relevant categories for refugee protection;

(g) noted that apart from "round-ups" in FGS18's home city, and FGS18's detention and questioning in a major city during the war, there was no credible evidence that FGS18 experienced any other problems on account of his ethnicity or discrimination or his originating from a former LTTE area: CB 441 at [43];

(h) noted there was no country information which indicated that the fact that a person had departed Sri Lanka and claimed asylum abroad would of itself lead to any imputation that they are a supporter of the LTTE or of post-conflict separatism: CB 445 at [58]; and

(i) in its conclusion with respect to refugee protection at CB 446 at [61] (set out at [36] above) concluded it was not satisfied that FGS18 faced a real chance of harm now or in the reasonably foreseeable future because he was a Tamil who had spent time in former LTTE controlled areas and had previously had extremely low level links to the LTTE.

1. The evidence indicates that the Authority considered, in some depth, as would be expected, whether or not FGS18 had links to the LTTE. The Authority found, on the available evidence, that any such links were "extremely low-level": CB 446 at [61], and that FGS18 was not as he belatedly claimed at the SHE Visa interview a supporter of the LTTE and that he had always been so. The findings and conclusions of the Authority in relation to FGS18's LTTE links, as set out at [71] above, were findings that were open on the evidence before the Authority, they were findings that a rational or logical decision-maker could make, and are not capable of characterisation as "extreme" findings or conclusions, and are therefore not illogical, and do not establish error in the Authority Decision: DAO16 at [4] and [30] per Kerr, Kenny and Perry JJ; ARG15 at [47] per Griffiths, Perry and Bromwich JJ; SZMDS at [130] and [135] per Crennan and Bell JJ.
2. Insofar as ground 3 asserts that the Authority took into account irrelevant considerations in determining FGS18's LTTE links that allegation is not made out. The matters to which the Authority had regard were plainly relevant to an assessment of FGS18's LTTE links.
3. In determining that there is no illogicality in the Authority Decision as claimed by FGS18 the Court has been cognisant that it has a limited role on judicial review: Plaintiff M1/2021 at [26] per Kiefel CJ, Keane, Gordon and Steward JJ, and that it ought not transgress into the territory of impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [56] per Wigney J.
4. It follows that ground 3 is not made out and does not establish jurisdictional error in the Authority Decision.

1. Ground 4 of the Judicial Review Application is as follows:

4. The Reviewer drew conclusions based upon facts not existing.

The Reviewer rejected the applicant's explanation as to why he did not disclose the new information contained in his Statutory Declaration earlier due to incorrectly interpreting point 47 and has therefore identified an inconsistency of fact which does not exist. The Reviewer incorrectly understood the applicant's reason as to why he did not fully explain his LTTE connections in his SHEV application, yet gave information at interview and in the subsequent submission to the IAA, as being due to the fact that he did not think it was relevant, whereas point 47 actually states that the applicant did not provide the Department with photos that show him assisting with Martyr's Day celebrations in Australia earlier as he felt that it did not seem relevant to do so when the central basis of his claim for protection was that he was tortured and raped by Sri Lankan police in his home country.

The Reviewer made an assumption that the Applicant, rather than urgently departing ...[City A] after his actual release from jail, waited around for one week in order to receive the court documents, whereas in actual fact, his father collected the documents in order to make sure that the family were in receipt of them and were able to have them translated into Tamil from the original Sinhala in order to understand the information that they contained.

The Reviewer referred to the UK Home Office Document of March 2017 but misquoted the available contents of the document and incorrectly concluded that adequate mental health services would be available to the Applicant if he were to return to Sri Lanka so that he could access medication and treatment. There is no specific reference to indicate that psychiatric medication and rehabilitation services are included under government subsidies or are available in ...[City C] at all. The Reviewer has erred in concluding that the Applicant would not be deprived of access to mental health services based upon facts not existing.

(a) the Authority's non-consideration of FGS18's Photographs (showing FGS18's attendance at Martyr's Day activities in Australia);

(b) the Authority's concern that FGS18's purported release by bribe was inconsistent with the non-urgent nature of him requesting certified copies of his court documents which involved waiting for a week for those certified copies to be produced; and

(c) the Authority's purported misquoting of UK Home Office reports about mental health services in Sri Lanka.

(a) in the February 2018 Statutory Declaration at [47] FGS18 said as follows:

I did not provide these photographs earlier because it did not seem relevant with these activities taking place in Australia. I was so certain that I would be accepted by the Department that I thought I wouldn't need to rely on this part of my claim.

(b) in the Authority Decision at CB 428 at [11] the Authority said that:

With the new statement the applicant also provided to the IAA photographs purportedly of himself attending Martyrs Day events in Australia in 2016 and 2017. Although he had claimed such attendance these photographs were not before the delegate and are new information. I have in any event in the review accepted that the applicant attended such events and in the circumstances I am not satisfied that there are any exceptional circumstances to justify considering this new information: s.473DD(a).

1. The Authority further found at CB 436 at [32] as follows:

I am willing to accept that the applicant has participated in occasional community events with his local Tamil community in Australia, which he described as once a year he uses his vehicle to transport furniture to help set up for Heroes Day remembrance events. I find that his participation is simply as a social activity and community support and is not because of any pro-LTTE support or pro-separatist activity, past or future. I do not accept that by this use of his van the applicant is or would be viewed as an organiser of the Heroes or Martyrs day events.

1. FGS18's Photographs showing his attendance at Martyr's Day activities in Australia were not considered because the Authority found that they did not meet s 473DD(a): CB 428 at [11]. The Minister concedes that the Authority's s 473DD finding in relation to the photographs does not comply with the principles in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 ("AUS17") as the Authority did not make any finding against s 473DD(b) before finding that there were no exceptional circumstances. Plainly that is an error, but an error is only jurisdictional if it is material: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Nathanson at [1] per Kiefel CJ, Keane and Gleeson JJ. The error established by the failure to consider FGS18's Photographs is however not material because the Authority accepted that FGS18 attended those Martyr's Day activities in any event: CB 428 at [11] and 436 at [32], and went on to explain, at CB 436 at [32] extracted above at [79], that FGS18's participation in the Martyr's (or Heroes) Day events were a social activity and community support and not pro LTTE support or pro separatist activity, past or future. FGS18's Photographs add nothing to the relevant factual matrix already accepted by the Authority. In the circumstances, FGS18's Photographs are not material as it is not evident that they would be likely to (in the sense of could not would) make any difference to the Authority's findings at CB 436 at [32]: MZAPC at [2] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
2. In relation to the waiting period for the receipt of the Sri Lankan court documents (which appear at CB 86-93) the Authority, having found that FGS18's claim of release because of the payment of a bribe by his father to the police was inconsistent with the fact that another person arrested with him was also released by the court on the same day and on the same basis as FGS18 but that there was no credible evidence that FGS18's father knew the other man or paid for his release, went on to find at CB 434 at [27] as follows:

...Additionally, the applicant's claimed release by bribe and warning from police to leave Sri Lanka, because they would call him again and would not release him next time, is not consistent with the applicant waiting around for a week and requesting certified copies of the court case, recorded as over, which the police/court report indicates were requested, and issued, on 30 and 31 October 2007 respectively and I find this implausible...

1. In the context of the claim now made that it was in fact FGS18's father who waited to receive the court documents a week after FGS18 was released it is pertinent to observe that in the Delegate's Decision the Delegate summarised FGS18's protection claims in relation to this issue at CB 157 as follows:
   • On the third day [of detention] he was taken to the ... [place name deleted] Magistrates Court, the judge remanded him in ... [place name deleted] jail for 14 days. He was treated poorly and mistreated by the Singhalese prisoners. Often he was beaten because he was Tamil and thought to be LTTE.
   • Whilst he was in ... [the jail], his father found the police officer who arrested him and paid a bribe of 100,000 rupees for his release. He was brought before the court after 14 days and released.
2. FGS18 provided copies of the court documents to the Delegate (including an English translation): CB 159. At no stage, however, does the Delegate record that there is a claim made that either FGS18 or his father had to wait for a week to receive the documents, and certainly no claim that it was the father alone who remained behind in the major city to await receipt of the court documents. That claim was not made until the making of the Judicial Review Application.
3. FGS18's submissions to the Authority did not make any claim that the father waited in the major city for the court documents: CB 194-198, even though it addresses the arrest, detention and torture of FGS18 and the existence of the court documents: CB 195 at [11], as well as claiming that the father paid a bribe: CB 196 at [18]. In the February 2018 Statutory Declaration FGS18 deals with the circumstances in which he alleges the bribe was paid and he was released, mentioning the court documents, but says nothing of it being FGS18's father who waited for a week to receive the court documents: CB 201 at [28]-[31].
4. In the circumstances, the fact FGS18 now says that "in actual fact" he was waiting for translations of the court documents and that they were collected by his father is beside the point because no claim to that effect was made by FGS18 prior to the Authority Decision. In the circumstances, the allegation now made that it was the father who collected the court documents is new evidence which cannot be put before the Court on this Judicial Review Application as it invites the Court to undertake impermissible merits review by making a factual finding contrary to that of the Authority in circumstances where, as the Court has already found, the finding made by the Authority was one open to it on the factual material then before the Authority: see MZXLD at [10] per Gordon J; Tesic-FCAFC at [55] per Reeves, Robertson and Rangiah JJ; BDY15 at [12] per Judge Lucev; AML18-FCCA at [82] per Judge Kendall.
5. The Authority's findings at CB 442 at [46] about healthcare in Sri Lanka were based on pages 179-182 and 276 of the Country of Information report ("COI Report") and pages 50-51 of the Country Policy and Information Note ("Information Note"). The COI Report and the Information Note are annexed to an Affidavit of Alexander Pok-Man Chan filed on 19 July 2019. In relation to the UK Home Office reports the Authority did not misquote the UK Home Office reports.
6. It follows that ground 4 is not made out and does not establish jurisdictional error in the Authority Decision.

1. The Court has concluded that each of grounds 1 to 4 has not been made out, and that each of those grounds does not therefore establish jurisdictional error in the Authority Decision.

1. The Court is cognisant that before it FGS18 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.

1. The Court has concluded that FGS18 has failed to establish jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed.
2. The Court will hear the parties as to costs.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.