AAH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 237

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 237

File number(s):

SYG 7 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

17 February 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether Authority considered certain information – whether the information was substantial and consequential – whether Authority’s failure to consider the information was material – application upheld.

Legislation:

Acts Interpretation Act 1901 (Cth), s 25D

Migration Act 1958 (Cth), ss 473EA, 476

Cases cited:

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50

Phan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3228

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Number of paragraphs:

34

Date of hearing:

18 November 2020 & 9 February 2021

Place:

Sydney

The Applicant:

Appeared in person, by telephone, and assisted by an interpreter

Counsel for the First Respondent:

Ms K Hooper appeared by telephone on 9 February 2021

Solicitor for the First Respondent:

Ms C Juarez of Minter Ellison appeared by telephone on 18 November 2020

ORDERS

SYG 7 of 2017

BETWEEN:

AAH17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	17 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The decision of the Authority made on 9 December 2016 affirming the decision of a delegate of the first respondent made on 22 September 2016 not to grant the applicant a Safe Haven Enterprise visa (delegate’s decision) is quashed.

2.The Authority review the delegate’s decision according to law.

3.The first respondent pay such of the applicant’s costs to which he is entitled as an unrepresented litigant. 

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a national of Sri Lanka, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

   CLAIMS FOR PROTECTION

2. The applicant’s claims for protection, as stated in his application for a SHEV, are as follows:[1]

   (a)The applicant was born in Eastern Province, Sri Lanka. Since the age of six the applicant witnessed and experienced difficulties in his life which have created fear. The area in which the applicant lived was inhabited by Tamils, Muslims, and Sinhalese, and there were frequent riots between Tamils and Muslims in which persons were killed. The applicant’s schooling was affected as a result of the riots.

   (b)In 1989 the IPKF,[2] EPDP,[3] and LTTE,[4] were dominant in the applicant’s area. After the IPKF left there were problems between the LTTE and the Sri Lankan police and the Sri Lankan Army (SLA). The applicant fled to a particular area. The applicant’s uncles were shot dead by the SLA on suspicion they were connected to the LTTE. The applicant’s two brothers were also shot dead by the authorities on suspicion they were connected to the LTTE.

   (c)In 2006 the applicant along with others were taken by the LTTE to work for them. The LTTE compelled the applicant, a mason, to perform work for them.

   (d)The applicant initially worked for the LTTE in their camp, but later he was allowed to leave on condition the applicant would help the LTTE when in the community.

   (e)The LTTE wanted the applicant to transport goods for them. The applicant did that by transporting grocery items such as tea packets and milk powder.

   (f)In 2010 a person who was known as Mr S in the LTTE identified the applicant to the authorities as a person who was connected to the LTTE. Authorities began to have suspicions about the applicant. They took the applicant to an STF[5] camp where the applicant was tortured. The applicant was detained for seven days. The applicant was asked to report to “their camp” weekly, and go to the camp when they called him. The SLA also came to the applicant’s home several times.

   (g)When the applicant went to the SLA to report, he was “asked to work for them”. That included chopping firewood. “They also beat” the applicant “saying [he] was a supporter of the LTTE”. The applicant was fearful for his life and, for that reason, he fled his country.

   (h)The applicant fears that if he returns to Sri Lanka the authorities will impute the LTTE ideas to him as a result of which he will be tortured and killed.

   [1] CB61-62

   [2] Which I assume is a reference to “International Peace Keeping Force”

   [3] Which I assume is a reference to “Eelam People's Democratic Party”

   [4] Which I assume is a reference to “Liberation Tigers of Tamil Eelam”

   [5] Which I assume is intended to be a reference to “Special Task Force”

3. In support of his application the applicant provided the following documents (errors in original):

   (a)A purported letter dated after the day the applicant left Sri Lanka from the applicant’s wife to the Human Rights Commission of Sri Lanka (HRC) in which she stated that she was threatened and forced to build “their camps” and to “obey their orders to save my family and myself”; and that a “gang of unknown persons came to my home . . . in search of my husband”, and they stated that if “my husband was not handed over, we would be taken by them”.[6]

   (b)A purported letter from a Mr U stating that in 2006 the applicant was taken by the LTTE for their building work; “some persons” brought this to the attention of the government forces; as a result the applicant “was captured on 2010. . . . at his House”; later he was released and “was asked to place his signature at the Forcer’s Camp”; following that, “Gov. Forces came to his house daily and made annoyance and Difficulties to him”; as a result the applicant lost his earnings as a mason; the applicant’s brother “was also abducted and he, breathed his last by Gun Shooting”; and that “he has been facing Death Threats”.[7]

   (c)A purported letter from a Mr G stating that in 2006 the applicant was taken by force by the LTTE to undertake mason work at their place; some people betrayed the applicant to the government armed forces and the applicant was “caught by them at his Home on 2010 . . .”; the applicant was tortured and then released, but was asked to come to place his signature on the register book weekly, as a result of which “he had not been able to go to other place”; the applicant’s brothers “were kidnapped and slaughtered”; and the applicant faces “Death Threat”.[8]

   [6] CB130

   [7] CB83

   [8] CB129

4. The applicant expanded on his claims at his interview with the delegate (SHEV interview). The applicant said his two brothers were killed by the SLA in 1992 and 2002; the first brother was not part of the LTTE, and the second brother only supported the LTTE by hanging posters for them; and the applicant’s two uncles were killed in the 1980s by the SLA because they were falsely imputed as LTTE supporters.[9] The applicant also said that he had been detained and tortured by the SLA in 2010 and that, after he was released, he reported to the SLA camp every week.[10]

   [9] CB137

   [10] CB137

   DELEGATE’S DECISION

5. The delegate accepted that two of the applicant’s brothers were killed, one in 1992, and the other in 2002; that the two of the applicant’s uncles were killed in the 1980s; that in 2006 the applicant was forced to work for the LTTE; and that in 2010 the applicant was questioned by the SLA. The delegate did not accept the applicant was required to report to the SLA camp for two years.

   AUTHORITY’S REASONS

6. The Authority first identified the information that was before it, and in particular information it had received from the applicant after the matter was referred to the Authority. The Authority identified[11] a document headed “Submissions for my review application” the applicant provided to the Authority.[12] The Authority noted the applicant referred to reports from medical examinations in Australia from between October 2012 and June 2016. The Authority found this was new information, but noted that the applicant had given no explanation why that information was not or could not have been provided to the delegate, or why the information could be regarded as credible personal information that was not previously known but which, had it been known, may have affected the consideration of the applicant’s claims. The Authority concluded it was “not satisfied in relation to the matters set out in s.473DD(b) of the Act”.

   [11] CB197, [4]

   [12] CB162

7. The Authority then considered the applicant’s claims. The Authority accepted the applicant is a Sri Lankan citizen, and of Tamil ethnicity;[13] two of the applicant’s uncles and two of his brothers died in Sri Lanka’s civil conflict, and that these deaths may have occurred at the hands of the SLA on suspicion of LTTE involvement;[14] the applicant originated from an area previously controlled by the LTTE; in 2006 he was forced to assist the LTTE in construction work for a few weeks and by delivering grocery items for around a month;[15] and in 2010 the applicant was detained by the SLA for around a week, interrogated, and mistreated.[16]

   [13] CB198, [9]

   [14] CB198, [11], [13]

   [15] CB199, [12]

   [16] CB199, [14]

8. On the other hand:

   (a)The Authority found there was no evidence that while he lived in Sri Lanka the applicant faced harm from Sri Lankan authorities because of his family connection; and there was no evidence that he would do so on his return to Sri Lanka, given that more than 20 years have passed after the applicant’s uncles and one of his brothers were killed, and fourteen years after another of the applicant’s brothers was killed.[17]  

   (b)The Authority did not accept as plausible that the applicant was required to report weekly to the SLA where he was forced to work and beaten.[18] The Authority relied on the applicant’s not having been arrested, charged, or interned in any sort of rehabilitation camp. The Authority also relied on country information which showed that former leaders of the LTTE faced the highest risk of being monitored, arrested, detained, and persecuted; low profile former members of the LTTE would likely be detained and sent to a rehabilitation camp; and both high and low profile former members of the LTTE would be monitored following release, as would family members of former LTTE members.[19]

   (c)The Authority did not accept the applicant’s wife had been visited by persons seeking the applicant. The Authority relied on the applicant’s not having claimed in his written statement or at the SHEV interview that his wife was in any way threatened, targeted, or visited by persons seeking the applicant; there was no evidence the applicant’s wife had suffered any harm as a result of the threat referred to in the purported letter from the applicant’s wife to the HRC; and the Authority placed no weight on the letter because it was “mindful of the prevalence of document fraud in Sri Lanka”.[20]

   (d)The Authority was not satisfied the applicant will face a real chance of harm because he is a Tamil. The Authority relied on country information that showed the overall situation for Tamils in Sri Lanka has improved since the end of the civil conflict in 2009; there are no official laws or policies that discriminate on the basis of ethnicity or language; there are Tamil political parties in Sri Lanka with the largest alliance of parties operating under the umbrella of the TNA (the Tamil National Alliance) which has 16 members of parliament and holds the majority of the seats in the Northern Provincial Council; and the TNA leader is the leader of the opposition.[21]

   (e)The Authority was not satisfied there is a real chance of harm for the applicant because of his Tamil race or because of his familial link to his uncles or brothers, or because of any imputed link to the LTTE. The Authority relied on country information that showed there are currently fewer individuals detained under emergency regulations and the Sri Lankan Prevention of Terrorism Act (PTA) than there were any other ethnic group during the conflict; the Sirisena government has reviewed the list of persons who had been detained under the PTA, and some have been released; the forced registration of Tamils had ceased, suggesting an easing of the monitoring and harassment of Tamils; and the monitoring and harassment of Tamils has decreased.[22]

   (f)The Authority accepted that on his return to Sri Lanka he would do so as a returning asylum seeker who left Sri Lanka illegally, and that, for that reason, he is likely to be questioned on arrival, charged under the Immigrants and Emigrants Act 1949, detained for a short time, and be ordered to pay a penalty. The Authority, however, was not satisfied that this would result from the application of non-discriminatory laws that are applied in a non-discriminatory manner and, for that reason, would not amount to persecution. The Authority was also not satisfied that the temporary detention and penalty to which the applicant would be exposed would amount to serious harm.[23]

   [17] CB199, [13]

   [18] CB200, [15]

   [19] CB199, [15]

   [20] CB200, [17]

   [21] CB200, [18]

   [22] CB201, [19]

   [23] CB201-204, [20]-[28], [32]-[35]

   COURSE OF HEARING

9. The hearing before me occurred by telephone on 18 November 2020. The applicant was not legally represented, but he was assisted by an interpreter. At the beginning of the hearing I explained to the applicant the purpose of the hearing, and the procedure that would be followed, which included my identifying the material I would consider. After I identified and admitted into evidence the relevant material, including the court book, I invited the applicant to tell me what he wished to say in support of his application that I make an order setting aside the Authority’s decision.

10. The applicant said he could not understand why the Authority had rejected his claims. I asked the applicant whether he had read the Authority’s decision. The applicant said he did not understand it completely. I suggested that Ms Juarez, who appeared for the Minister, might summarise the Authority’s decision when making submissions on behalf of the Minister. I then read each of the two grounds of the application and invited the applicant to make submissions in relation to the grounds. Ms Juarez then made her submissions on behalf of the Minister. At the beginning of her submissions Mr Juarez identified each of the principal findings the Authority made. The applicant then made further submissions in reply.

11. At the conclusion of the hearing I reserved judgment. In the course of considering my judgment I paused to consider whether the Authority had considered the letters from Mr U and Mr G. I did so because the Authority referred to these letters when assessing the applicant’s claim that he continued to report to the SLA after his detention and mistreatment in 2010, and that he continued to be mistreated when he reported to the SLA.[24] In the course of considering the letter from Mr U, however, I noticed the Authority did not expressly refer to the statement contained in that letter that “following this”, namely, the applicant’s release from detention, “the Gov.Forces came to his house daily and made annoyance [sic]” (Material in Question); and the Authority made no finding about whether, as asserted by the Material in Question, government forces did come to the applicant’s house daily after the applicant had been released from detention. That raised a question in my mind whether the Authority had considered this part of Mr U’s letter.

    [24] CB199, [14]

12. In those circumstances I directed my associate to send the following letter to the parties on 20 November 2020:

    His Honour has requested that the following matters be brought to the attention of the parties.

    In support of his application for protection, the applicant provided two purported letters, one from a Mr U (CB83), and one from a Mr G (CB129). The letters refer to the applicant’s being detained and mistreated by the SLA in 2010. The Authority referred to this part of each of the letters and accepted the applicant was detained and mistreated by the SLA in 2010.

    The letter from Mr G, however, also states that, after his release, the applicant was asked to come “to place his signature in the Register-Book weekly”; and the letter from Mr U states that “Gov. Forces came to his house daily and made annoyance and Difficulties for him” (Material in question).

    His Honour invites the parties to provide written submissions by 27 November 2020, or by such later time as the parties may reasonably request, to provide written submissions that address the following questions:

    1)In not accepting as plausible the applicant’s claims that he was required to report weekly to the SLA after the applicant’s release in 2010 (CB200, [15]), did the Authority consider the Material in Question? If so, on what basis is it said the Authority considered the Material in Question?

    2)Assuming 1 is answered in the negative, would the Authority’s not having considered the Relevant Material have the consequence that the Authority’s decision is affected by jurisdictional error? If not, why not?

    3)Would the parties be content for his Honour to consider submissions that may be filed in response to his Honour’s invitation without further hearing, or would the parties instead wish to supplement the written submissions with oral submissions?

13. In response to this letter the parties filed written submissions, and I listed the matter on 9 February 2021 to hear oral submissions in relation to the questions identified in my associate’s letter. I will consider the issues raised in my associate’s letter when I consider the first of the two grounds stated in the application.

    GROUNDS OF APPLICATION

14. There are two grounds of application.

    Ground 1

15. Ground 1 is as follows (errors in original):

    The IAA made a Jurisdictional error in that it did not find the Applicant refugee basd on the evidence before it cumulatively.

    Particulars

    The IAA reviewer failed to discern a Convention nexus namely the Applicant will be imputed with the LTTE profile for his association/working with the LTTE and in light of the death of the Applicant’s two brothers and two uncles.

16. Ground 1 claims the Authority did not consider all of the evidence “cumulatively”. By this I take the applicant to claim the Authority did not consider all the evidence that it ought to have considered to be relevant to assessing each of the applicant’s claims for protection. The applicant did not identify any particular material he claimed the Authority overlooked. In my mind, however, there is a question whether the Authority considered the Material in Question.

17. The Minister submits it is not open to find the Authority did not consider the Material in Question; and that is because the Authority expressly referred to the letter from Mr U;[25] the Authority is not required to “expressly grapple with all evidence contrary to its findings of fact”;[26] and the Authority is not obliged to set out the evidence which is contrary to the findings of the Authority on any material questions of fact where such evidence is not evidence on which a positive or negative finding is based.[27] The Minister further submits the Authority did consider the Material in Question, but it did not accept the fact asserted by the Material in Question, namely, that “the Gov.Forces came to his house daily and made annoyance [sic]”. The basis of that submission is the Authority did not accept as plausible the applicant was required to report weekly to the SLA, where he was forced to work and was beaten.[28] At the hearing on 9 February 2021 Ms Hooper, who appeared for the Minister, submitted this finding subsumed the factual assertions conveyed by the Material in Question. The Minister submits in the alternative that even if the Authority did not consider the Material in Question, the applicant cannot discharge the burden that is on him to establish that such oversight would have been material.

    [25] First Respondent’s Further Written Outline of Submissions, [7]

    [26] First Respondent’s Further Written Outline of Submissions, [15]

    [27] First Respondent’s Further Written Outline of Submissions, [16]

    [28] First Respondent’s Further Written Outline of Submissions, [14]

1. It is the case, as the Minister submits, that the Authority was not obliged to “grapple with all evidence contrary to its findings of fact”; and that it was not obliged to set out the evidence that is contrary to the findings of the Authority on any material questions of fact where such evidence is not evidence on which a positive or negative finding is based. That does not mean, however, that the question whether the Authority did not consider the Material in Question is to be determined on the assumption that the Authority limited its reasons to identifying evidence on which the Authority based a positive or negative finding, and otherwise the Authority framed its reasons to reflect nothing more than what it was legally obliged to set out in its reasons. The question whether the Authority did not consider the Material in Question is to be determined by reference to the manner in which the Authority actually considered the applicant’s claims.

2. It is apparent from its reasons that the Authority intended to identify all of the evidence it considered was or may be relevant to its assessment of the applicant’s claims, and the Authority intended to address that evidence by identifying it and making findings, positive or negative, in relation to the evidence. It may be inferred the Authority did so because this method of conducting its review appealed to it as a more convenient way of assessing the applicant’s claims than by framing its reasons by reference to the minimum requirements prescribed by statute (s 473EA of the Act as read with s 25D of the Acts Interpretation Act 1901 (Cth)) and by cases that have construed those statutes. In those circumstances, an inference is available to be drawn from the Authority’s not referring to or addressing a particular item of unquestionably relevant evidence that the Authority did not consider the evidence; and that inference is available to be drawn in relation to the assertion conveyed by the Material in Question.

3. The Authority found it was not plausible the applicant was required to report weekly to the SLA, where he was forced to work and beaten. The Authority relied on: (a) country information that showed that low profile former members of the LTTE would likely be detained and sent to a rehabilitation camp, and would be monitored after release; (b) a finding that, while the applicant had been detained for a short period, he was not arrested, charged, or interned in any sort of rehabilitation camp; and (c) a finding that “from this”, that is, from findings (a) and (b), the applicant’s assistance to the LTTE was not significant enough to impute him with a profile of interest. The information conveyed by the Material in Question, namely, that following his release from detention “the Gov.Forces came to his house daily and made annoyance [sic]”, is clearly relevant to whether the applicant’s assistance to the LTTE was significant enough to impute him with a profile of interest. If accepted, the government forces’ attending the applicant’s house daily could rationally support a finding that the authorities had an intense interest in the applicant; and that, in turn, could rationally ground a finding that, contrary to what the Authority found, the applicant’s assistance to the LTTE was significant enough to impute him with a profile of interest which in turn could rationally ground a finding, contrary to that which the Authority made, that it is plausible that the applicant was required to report weekly to the SLA, where he was forced to work, and was beaten.

4. Given the relevance of the assertion conveyed by the Material in Question, I find that the Authority’s failure to refer to it is to be explained by the Authority’s having overlooked it. Had the Authority attended to the Material in Question, it would have realised its relevance to the question it would have had, and it would have addressed it either by accepting or by rejecting it.

5. A finding that the Authority had failed to consider the Material in Question does not necessarily mean the Authority made a jurisdictional error. The consequence of the Authority’s failure to consider the Material in Question is to be determined, at least in substantial part, by the application of the following principle stated by Robertson J in Minister for Immigration and Citizenship v SZRKT:[29]

   The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

   [29] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, at [111]

6. The question is whether the Material in Question is substantial and consequential. In my opinion, that question is to be answered in the affirmative. As I have already found, had the Authority accepted the assertion conveyed by the Material in Question, it could rationally ground a finding that, contrary to what the Authority found, the applicant’s assistance to the LTTE was significant enough to impute him with a profile of interest which in turn could rationally ground a finding, contrary to that which the Authority made, that it is plausible that the applicant was required to report weekly to the SLA, where he was forced to work, and beaten.

7. I then turn to the question of materiality, which substantially overlaps with the application of the principle in SZRKT. As I have noted elsewhere,[30] it has been said that materiality:[31]

   is a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation.

   [30] Phan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3228, at [36]

   [31] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [47] (Kiefel CJ and Gageler J)

8. The required counterfactual analysis is to posit a state of affairs that is predicated on the decision-maker having not done that which the decision-maker was prohibited from doing, or having done that which the decision-maker ought to have done, but did not do; and then enquire whether in this posited state of affairs there is a possibility the decision could have been different. The degree of possibility of the decision being different in the posited state of affairs has been expressed in terms of “could realistically” have resulted in a different decision.[32] This expression is premised on an applicant’s bearing the burden of establishing that a particular act or omission said to give rise to jurisdictional error was material.[33] Another formulation is premised on the party seeking to uphold the validity of a decision to prove that the alleged act or omission said to constitute jurisdictional error could not have deprived the applicant of a successful outcome.[34]

   [32] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45] (Bell, Gageler and Keane JJ)

   [33] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [46]: The “question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof.”

   [34] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [127]

9. On the assumption the applicant bears the onus of proving materiality, the question is whether, had the Authority considered the Material in Question, that could realistically have resulted in the Authority making a different decision. Ms Hooper submits that question should be answered in the negative. Ms Hooper submits the Material in Question did not indicate “how long this annoyance and ongoing reporting occurred”; and, in any event, given the Authority’s decision was made in 2016, the Material in Question consisted of “objectively insignificant and historical matters”. I do not accept those submissions.

10. It is true the Material in Question does not state a precise period; but it would have been open to the Authority to find that the Material in Question was to the effect that the daily house visits extended over a substantial time. The letter from Mr U states that “[a]s a Result” of the daily visits the applicant “lost his Earnings by the Mason work” which is reasonably open to ground a finding that the daily visits and “annoyance” were ongoing. It is also true the Authority found that what occurred in 2010 was only of historical interest. That the Authority considered and made findings in relation to the applicant’s claims of what had occurred in 2010, however, indicates the Authority considered those events as potentially relevant to its assessment of whether the applicant was a “refugee” or otherwise was entitled to protection. The Authority concluded that, on the findings it made, the applicant did not face a real risk of harm. Had the Authority considered the Material in Question, however, there is a realistic possibility that the Authority would have accepted the assertions conveyed by the Material in Question. Had the Authority done so, there is a realistic possibility the Authority would have found that the events conveyed by the Material in Question did occur; and, on the basis of that finding, there is a realistic possibility that the Authority would not have regarded those events as only of historical interest, but would have regarded them as giving rise to a real risk of persecution or real risk of significant harm.

11. The Authority’s failure to consider the Material in Question was material; had it considered it, there is a realistic possibility the Authority would have made a decision favourable to the applicant. Ground 1, therefore succeeds.

    Ground 2

12. Ground 2 is as follows:

    The IAA made a jurisdictional error.

    Particulars

    The IAA failed to consider future persecution for Applicant’s association with the LTTE.

13. As formulated there is no merit in this ground of application. The applicant made submissions in relation to this ground. These appealed to the merits of the applicant’s claims for protection; and it is not necessary to set out what the applicant submitted because they do not raise an arguable case of jurisdictional error.

14. Ground 2, therefore, fails.

    Other submissions

15. At the hearings on 18 November 2020 and 9 February 2021 the applicant made submissions that appealed to the merits of his application for protection. It is not necessary to set out what the applicant submitted because they do not raise an arguable case of jurisdictional error.

16. Finally, I should record that in the affidavit the applicant filed with his application he says he is “aggrieved by the decision of the IAA as I fear that if I return to Sri Lanka I will be persecuted”. This is an appeal to the merits of the applicant’s claims for protection and does not disclose any jurisdictional error.

    DISPOSITION

17. I propose to order that the Authority’s decision be set aside and that the Authority consider the application for review according to law. I will also order the Minister pay to the applicant such costs as to which the applicant might be entitled as an unrepresented litigant.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       17 February 2021