Aai20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1084

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1084

File number(s):	PEG 24 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	23 November 2023
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 65, 473CB (1)(c), 473DC, 473DD.
Division:	Division 2 General Federal Law
Number of paragraphs:	97
Date of last submission/s:	13 November 2023
Date of hearing:	13 November 2023
Solicitor for the Applicant:	Sydney West Legal and Migration
Counsel for the First Respondent:	Ms Taggart
Solicitor for the First Respondent:	Australian Government Solicitors

ORDERS

PEG 24 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AAI20
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	23 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application filed on 23 February 2023 as amended on 12 June 2023, 11 August 2023 and 29 October 2023 be dismissed.

2.The objection to the subpoena filed on 17 August 2023 is upheld.

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).

REASONS FOR JUDGMENT

JUDGE VASTA

INTRODUCTION

1. On 16 February 2023, the Immigration Assessment Authority (IAA) affirmed a decision not to grant the applicant, AAI20, a protection Visa.  On 23 February 2023, the applicant asked this Court to review that decision.

2. The applicant is a citizen of Sri Lanka.  He arrived in Australia (with his wife’s brother) as an unauthorised maritime arrival on 8 November 2012.  He was subject to an enhanced screening procedure interview (ESPI) on 3 December 2012.  He was subject to an entry interview conducted on 31 December 2012.  On 28 July 2014, the applicant told the department that he wanted his application heard separately from that of his brother-in-law. 

3. On 28 September 2017, the applicant made his application for a protection Visa.  On 16 May 2018, the delegate refused to grant the Visa.  The matter was automatically referred to the IAA.  On 16 November 2018, the IAA affirmed the decision to refuse the Visa.

4. The applicant sought a review of that decision in this Court.  On 27 January 2022, this Court dismissed the application for review.  The applicant appealed to the Federal Court.  On 21 October 2022, the Federal Court allowed the appeal and remitted the matter for redetermination.

5. The applicant’s representative sent new material to the IAA upon remittal and, as earlier noted, the reconstituted IAA affirmed the decision not to give the applicant a visa on 16 February 2023.

   Background

6. The applicant’s claims were that he was born in 1986 in the Eastern province of Sri Lanka.  He is an ethnic Tamil and a member of the Hindu religion.  The applicant said that he was affected by the tsunami on Boxing Day 2004.  He sought refuge at a school.

7. He said that, after this tsunami, the Liberation Tigers of Tamil Eelam (LTTE) asked him to join their organisation.  He said that he refused and he was detained in a bunker for a period of time.  He said he was beaten.  He said that the “leader” threatened that he (the applicant) would be sent into the forest if he refused to work for them.  The applicant said that he told the leader that he could not fight but he could work in the office and as a driver for them.

8. The applicant said that he worked for the LTTE, for about three months, transporting members from one office to another.  He also put up banners in front of their office and he went to the market to buy meat and vegetables for them.  He said that his mother complained to the police about his abduction in 2004 but nothing happened.

9. The applicant said that, after some time, there was a split between the LTTE and the Karuna group.  He said the Karuna group, also known as the Tamil Makkal Viduthalai Pulikal (TMVP), joined the Sri Lankan government.  The applicant said that he left the LTTE, returned home and resumed working as a fisherman.

10. The applicant said that one day after returning from fishing, a member of the LTTE told him that, after an attack by the TMVP, a few LTTE members were stranded in bushland and could not escape overland.  The applicant said that he was asked to transport the stranded members to another area.  He said that when he refused to comply, a pistol was put to his head and he had no choice but to comply.  He said that he transported about a dozen LTTE members to the place that they wish to go.

11. The applicant said that he then began working as a carpenter.  He said that one day when he was travelling to work, he was stopped by 10 or 12 men who belonged to a paramilitary group.  He said that he was slapped and taken to another place where he was interrogated by men who had their faces covered.  He said that they told him that they knew that he was working for the LTTE.  He said that he was beaten, lost consciousness and woke up in a private hospital where he was taken by his parents.  He said that he remained in hospital for two or three days and then returned home.  He said that he tried to harm himself by cutting his wrists and attempting to hang himself.

12. The applicant said that every time someone from the LTTE or the government forces were killed, the applicant was rounded up, beaten and interrogated.  The applicant said that he was interrogated by the TMVP on many occasions.  The applicant got married and lived with his wife’s relatives in another town, in an attempt to avoid harassment.  He said that he was found by the TMVP who continued to interrogate him.  He said that he was shown photos of LTTE members and asked if he could recognise them.

13. The applicant said that an LTTE member who had also worked in the LTTE office was interrogated and asked about the applicant.  He said that this person told the TMVP that the applicant had worked in the LTTE office.  The applicant said that this man was shot two or three days later.

14. The applicant said that in June 2012 he contacted an agent to make arrangements for him to travel to Malaysia.  The agent bought the tickets.  The applicant said that he was stopped at the airport in Malaysia and returned to Sri Lanka.  On return he was interrogated by the authorities.  He told them that he went to Malaysia for a holiday.

15. The applicant said that he started to live in hiding.  He decided to contact the Tamil National Alliance (TNA) and tell them about his situation.  He was told by a member of Parliament that if the applicant helped the Member of Parliament (MP) with the election campaign, the MP would get the applicant a government job.  The applicant said that, in August 2012, he started working for the TNA.

16. The applicant said that on 6 August 2012, people in a white van told him not to put up posters.  The applicant said that he received an anonymous call from a man who threatened to kill him.  The applicant said that he continued to work for the TNA but he moved to another town and stayed in hiding.  He said that he stayed with a Catholic priest from 21 September 2012 until he left Sri Lanka on 7 October 2012.

17. He said that after he had arrived in Australia, his wife was questioned about him by the TMVP on many occasions.  He said that his mother was also questioned by persons he assumes were from the Criminal Investigation Department (CID).  He said that a person called J who was working with the applicant for the TNA, was shot and killed by the TMVP.

18. The applicant said that he feared that he would be arrested, detained, tortured and killed by paramilitary groups because of his involvement with the LTTE and having worked for the TNA in 2012.  He fears that he would be harmed because of his Tamil ethnicity and because he is a returned asylum seeker from a western country.

19. When interviewed by the delegate, the applicant made additional claims and elaborated on his existing claims.

20. The applicant said that he drove LTTE members who were part of “pistol gangs” who arrested or killed Karuna/TMVP members.  The applicant said that his friends assumed that he was dangerous, so they stopped talking to him.  He said that he was also involved in forcible recruitment for the LTTE.

21. The applicant said that many of his relatives were in the LTTE, including his father’s sister’s son.  He said that many of his LTTE relatives were killed by the Sri Lankan Army prior to him joining the LTTE.  The applicant said that his family burnt the applicant’s LTTE documents and photographs for their safety.

22. The applicant said that his sister’s husband left her because the TMVP were looking for the applicant and the husband was afraid that they may take him.

23. The applicant said that he suffered from mental health conditions and was under medication.  He said that he continued to access mental health services whilst in immigration detention.

24. The applicant was convicted of a crime and sentenced to imprisonment.  The criminal court judgments name him, and the applicant says that this means that he can easily be linked to the immigration court cases which detail his claim and that the Sri Lankan authorities would know about this.  He said that this places him at risk of harm.

25. The applicant said that he was sexually assaulted whilst in prison.  He said that and the fact that he has been convicted of a crime gives rise to a risk of serious and significant harm because he would have a stigma about each of these circumstances.

    The IAA Decision

26. The IAA thoroughly looked at all of the claims that the applicant made and also accessed country information.

27. In the end the IAA was not satisfied that the applicant met the requirements for the definition of refugee.  The IAA was not satisfied that there were substantial grounds for believing that the applicant would suffer significant harm if returned from Sri Lanka.

28. Having come to those conclusions, the IAA affirmed the decision not to grant the applicant a protection Visa.

    This application

    The hearing proceeded on Monday 13 November 2023.  The applicant filed a further, further amended application on 29 October 2023 and the hearing proceeded upon those grounds.

    Ground 1

29. Ground 1 is that:

    The IAA’s review miscarried because of the failure of the Secretary under s.473CB to take reasonable steps to search for relevant documents in the possession or control of the Secretary concerning the applicant’s brother in law (S). In the alternative the failure of the Authority to request the documents from the Secretary under s.473DC was unreasonable.

30. The background to this claim is found in the transcript of the ESPI which begins at CB 220.  At CB 221, the applicant said to the interviewer that his wife’s brother travelled with him to Australia.  The applicant explained why it was that he came to Australia.  He said that persons had beaten up his father and told his father to produce the applicant.  The applicant said that he stayed with a Catholic priest for two days.  At CB 225, the following exchange occurred:

    Q: What happened after that?

    A: They were also trying to take my brother in law. They went looking for my brother in law and wanted to get him to take me as well, so my brother in law decided to flee and my mother in law arranged for me also to flee with him.

    Q: Was he also working for the Tamil National Alliance?

    A: He was not employed by them like me but he was around with me, helping me, when I was doing that work.

31. Later, at CB 228, the applicant was asked whether he considered moving to live elsewhere in Sri Lanka.  He answered that he went to the area where his wife’s family were but “there again they were looking for me and my brother in law also and…”.

32. At CB 230, the following question and answer occurred:

    Q: How old is your brother in law that you fled with?

    A: He is about 19. He wasn’t involved in anything only helping me but they were trying to get him to catch me. And because of me he has fallen into trouble.

    What can be made of those passages?

33. The applicant submits that a claim has arisen out of what was said in the ESPI.  Basically, the applicant now says that the applicant contended that the TMPV were out to get him because he had started working for the TNA.  The applicant said that he was claiming that his brother-in-law was coerced into capturing the applicant for the TMPV, but rather than do that, his brother-in-law ran away with him.

34. The brother-in-law came to Australia with the applicant and, obviously, made some form of application to the Department because the applicant asked for his own matters to be looked at by the Department separately from the matters of his brother-in-law.  The applicant submits that the brother-in-law could have corroborated the claim made by the applicant that the TMPV were after him, or, if he said nothing about the TMPV, the claim of the applicant would be able to be discounted.

35. It is for this reason that the applicant submits that anything to do with the brother-in-law coming to Australia was “relevant”. According to s. 473CB (1)(c), the Secretary must give to the IAA any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review.

36. The applicant submits that the failure of the Secretary to take reasonable steps to search for those relevant documents is a circumstance which has caused the IAA decision to be infected by jurisdictional error.

37. There is no doubt that a failure of the Secretary to give to the IAA relevant documents in the possession and control of Secretary can lead to the decision of the IAA becoming infected with jurisdictional error.  In fact, the failure of the Secretary to give to the (first constituted) IAA a copy of the ESPI was seen by the Federal Court as being such a circumstance that led to that Court remitting the matter to a newly constituted IAA for re-determination.

    Was the file of the brother-in-law “relevant”?

38. Whilst the applicant mentioned the brother-in-law in the ESPI, he did not make a claim that the brother-in-law knew why it was that the TMVP wanted to capture the applicant.  The most the brother-in-law could say is that persons approached him to capture the applicant and he refused to do so.  The applicant did not make a claim that the brother-in-law knew why this was so, nor that the brother-in-law was in trouble for not carrying out the orders of the TMPV.

39. When the applicant was interviewed in his entry interview four weeks after the ESPI, the applicant made no mention of the brother-in-law or any role played by his brother-in-law.

40. On 28 July 2014, the applicant specifically asked that his application be considered separately from that of his brother-in-law.

41. The applicant did not mention any “claim” related to his brother-in-law in his statement that accompanied his application for a protection Visa.  The applicant did not mention any “claim” related to his brother-in-law when interviewed by the delegate.  In detailed submissions made by the solicitor for the applicant (and sent to the delegate), there was no mention of the brother-in-law.

42. When the delegate made their decision, it was then that the Secretary had to give whatever material that was considered by the Secretary to be relevant to the review.  At this time (May 2018), the applicant had mentioned the brother-in-law in the ESPI (which was conducted on 3 December 2012).  He did not mention any role that the brother-in-law played at any other time.

43. Given that what the applicant had said in the ESPI did not amount to a “claim” and that the applicant did not mention the role of the brother-in-law in the intervening five and a half years, the relevance of this material is not particularly obvious.  It naturally follows that the Secretary did not consider that the role of the brother-in-law was “relevant” and therefore any file, which pertained to the claim that the brother-in-law had made, would also not be considered by the Secretary to be “relevant”.

44. The ground relied upon by the applicant is that the IAA review miscarried because of the failure of the Secretary to take reasonable steps to search for the file relating to a third-party, being the brother-in-law.  If the Secretary did not consider that the file of the brother-in-law was “relevant”, it follows that there was no requirement for the Secretary to take reasonable steps to search for that file.

45. This aspect of ground one, therefore, fails.

    The second aspect of Ground 1

46. The applicant submits that the failure of the IAA to request documents relating to the brother-in-law from the Secretary was unreasonable.  It is trite to say that s. 473DC allows the IAA to get any documents or information that were not before the Minister when the Minister made the decision and which the IAA considers may be relevant.

47. This aspect of ground one has the same problem as the previous aspect in that the IAA must consider that the documents are “relevant”.  The difference in respect to this aspect, is that the differently constituted IAA now had the ESPI before it as well as a new statement by the applicant to consider.

48. In this new statement, the applicant details that he was far more involved with the LTTE than he had previously declared.  In this new statement, the applicant did not speak of the brother-in-law at all.  Relevantly, the applicant said the following at his paragraphs 126, 127 and 128 (which is found at CB 1403):

    [126] … Then after I was hiding everywhere.  Then after I moved again in hiding, to some trees near my sister’s place and the priest’ s house. 

    [127] Then after my aunty spoke to me you have to go on the boat and then after bring your wife and kids.  I said ok.  They said you have to go Pallamanai.  Then I went Pallamanai and then to another place the beach.  Then in a small boat, then to big boat.  Then after I know they are saying “we go Australia”.  Then after that came I came to Christmas Island. 

    [128] When I came to Australia, many times the Karuna/TMVP went to my house looking for me and bash my father (sic) …

49. This passage is significant because the applicant was no longer asserting that his mother-in-law had arranged the voyage to Australia (as he had claimed in the ESPI and the entry interview) but was now saying that it was arranged by his aunty.  He has not claimed that his brother-in-law played any role.

50. The applicant had a copy of the transcript of the ESPI when he made this new statement for the benefit of the reconstituted IAA.  He was represented by an extremely competent legal practitioner and made a very thorough statement in which he did not mention any role played by his mother-in-law, let alone his brother-in-law.

51. In the hearing before me, the legal representative for the applicant attempted to explain this anomaly by pointing out that the applicant had said, during his interview with the delegate, that he discovered that his wife had been cheating on him while he was in jail.  The legal representative ruminated that this could be the reason why the applicant had downplayed the role of his brother-in-law.  Such an explanation is pure conjecture, and the Court cannot consider such wild speculation.

52. It is difficult to see how, or even why, the IAA would be of the view that the file of the brother-in-law would be relevant to the claims made by the applicant if the applicant did not even mention the brother-in-law in his very lengthy revised statement which was made under the oversight of his legal representatives.

1. As this aspect of the ground alleges that it was unreasonable for the IAA not to request documents from the Secretary, the applicant must convince the court that there was simply no other action that the IAA could legally undertake other than to request those documents because they were relevant.

2. The applicant has not been able to illustrate why the IAA should have accepted that these documents were relevant, let alone why the IAA had no other legal option but to request the documents from the Secretary.

3. This aspect of ground 1 also fails.

   Ground 2

4. Ground 2 is that:

   In finding that 4.473DD was not met in relation to the photograph at CB343/345 [at IAA-22] the Authority (a) failed to apply the correct tests, (b) applied the wrong test, (c) made unreasonable findings; and (d) failed have regard to the new information “in the whole”.

5. The background to this ground is that, in preparation for the appeal that was heard by the Federal Court on 14 July 2022, the representative for the applicant sent to the Minister, on 3 July 2022, a photograph.  The email (which is reproduced at CB 342) read as follows:

   Dear Officers

   Further to the below email sent this morning is the screenshot of when the Applicant sent the document to me as his lawyer on 31 May 2022.

   I am informed this morning by the applicant that unfortunately one week ago his phone froze and had to be reset and hence he is unable to provide the screenshot of when he received the photograph from his nephew. However he advises that as soon as his nephew sent the photograph to him, he forwarded it to me.

6. The “below email” (which is reproduced at CB 346) reads as follows:

   [AAI 20] will be making a s.48B submission and puts the Minister on notice that he recently received this photograph of him in LTTE uniform sent by his nephew.

7. The emails were sent by the lawyer who is presently representing the applicant.  The photographs are reproduced at CB 343 and CB 345.  When the matter was remitted to the reconstituted IAA, the IAA considered the photographs as new material given to the IAA by the applicant.  Therefore, before the IAA could consider the photograph, it had to meet the prerequisites for consideration imposed by s. 473DD.

8. The IAA wrote the following at paragraph 22 of their reasons to explain why it was that they did not consider the photograph.

   The photograph said to be of the applicant in LTTE uniform during the conflict
   appears to be a photograph/screenshot of a photo of a man in what is claimed to be
   the LTTE uniform. The photograph was not provided with the applicant’s SHEV
   application alongside other documents provided in support of his claims nor provided
   to the delegate. It is claimed that the applicant received the photo from his nephew
   but is unable to confirm when he received the photo because his phone had to be
   reset. There is no notation of when the photograph was taken, and I cannot verify
   that the photo (which appears blurry) is that of the applicant. I also note the
   applicant’s evidence in his statement dated 14 January 2023 which indicates that the
   applicant’s photos in LTTE uniform were destroyed and burnt by his family due to
   government authorities visiting and searching their home. While it is possible that
   this refers to other photographs/documents or that the screenshot was taken some
   time ago, I am not satisfied that the photograph is that of the applicant as claimed.
   Given these matters, I am not satisfied that either limb of s.473DD(b) of the Act is
   met or that there are exceptional circumstances to justify its consideration.

9. The problem in the way that the applicant argued this ground was that many other aspects of the general complaints that the applicant had flowed into this ground. 

10. The applicant has not said that the photograph is a depiction of himself in an LTTE uniform.  At best it may be said that he instructed the solicitor that the photograph depicted him in a LTTE uniform.  In his statement written for the reconstituted IAA, the applicant said this at paragraph 128 and 129 (reproduced at CB 1403):

    [128] … They (Karuna/TMVP) sent letter to my family "you have to come". My family know that they want me to come and give information and then they will shoot me. 

    [129] There were many letters but when my mother sent those documents to me they burnt all the documents. The photo of me in LTTE uniform was also destroyed for safety. I had so many photos but because when Government come and check my house if they see all that we' ll be in big trouble so they burnt all those photographs. Because when they do the roundup it happens suddenly and if they see these photographs and documents its dangerous so nobody keeps those things with them. If they suspect people and take them to a particular place, nobody comes back.

11. In the statement, there is no identification of the photograph sent to the Minister on 3 July 2022 as being “the photo of me in LTTE uniform” that is referred to in paragraph 129.  There is no explanation as to how that photograph was taken, or when it was taken or what were the circumstances. 

12. It is a blurry photograph.  It is quite unlike the clear photographs that the applicant sent to the Minister (CB 388, and CB 390) depicting “injuries” that he suffered.  It is also quite unlike the clear photograph of the applicant that accompanied his Visa application (CB 15) or even the Yongah Hill ID photograph at CB 205.

13. The applicant clearly stated that all photographs and documentation relating to him in the LTTE had been destroyed and burnt by his family due to the danger posed to them by their mere existence.

14. Having regard to all of those matters, it was clearly open for the IAA to not be satisfied that the photograph was a photograph of the applicant.

15. For an applicant to satisfy the criteria in s. 473DD, that applicant must show that the “new information” was not, and could not have been, provided to the Minister before the Minister made the decision under s. 65.

16. The applicant could never have satisfied this aspect because, at the time that the Minister was making the decision under s. 65, the applicant was claiming that he was not a member of the LTTE but had been forced to do some tasks for them. As the legal representative conceded, even if the applicant had that “photograph” at the time, he would not have provided it to the Minister because it was in contradiction to his claims (which were, at that time, that he was not a member of the LTTE).

17. Alternatively, the applicant must show that the “new information” is credible personal information which was not previously known and, had it been known, may have affected the consideration of the claims of the applicant.

18. The photograph must be considered to be “credible personal information”.  The IAA was not satisfied that the photograph depicted the applicant.  It was submitted that, for the information to be considered “credible”, all that was needed was that the information “could be true”; in other words, all the applicant had to show to the IAA was that the photograph “could have been of him” for it to pass the test set out in s. 473DD.  It was also submitted that the term “credible” had to be assessed in relation to the whole of the evidence especially that of the applicant who was now claiming that he was very involved with the LTTE.

19. I do not accept those submissions.  The absence of any explanation by the applicant, as to how that photo was taken and why it is that it was sent to him, impacts upon credibility.  The blurriness of the photo (especially compared with the other photos of the applicant that the IAA had) also affects the credibility.  It is a matter for the IAA to assess, having regard to all the circumstances surrounding the “new information”.

20. It cannot be said that the IAA did anything other than to apply the correct test as laid out in s. 473DD.  The decision not to accept the photograph as new information cannot be said to be unreasonable, as it was clearly open for the IAA to conclude the issue as they did.  The IAA did consider the new information “in the whole” by looking carefully at paragraph 129 of the applicant’ s new statement.

21. There has been no jurisdictional error illustrated by ground 2 and it, therefore, fails.

    Ground 2A

22. Ground 2A is that:

    The Authority made a jurisdictional error by failing to intellectually engage with the LTTE uniform claim made in the 14th January 2023 statement [pCB1403, paragraph 129] in the deliberative phase, or at all, as required by s.473DB.

23. The essence of this ground is that the applicant is now submitting that he had made a claim that, because he wore a uniform (specifically a LTTE uniform), he would be deemed to have been a combatant, or at the very least, part of the cadre.  This means that he would be seen as “an un-rehabilitated former cadre”, which, according to DFAT information, would mean that he would be likely to be detained and sent for rehabilitation.

24. In his submissions, the representative of the applicant said that the applicant was claiming that he carried weapons for the LTTE and that he was involved in combat for the LTTE.  The applicant claimed that this is the effect of what was said in paragraph 129 of his new statement (CB 1403 quoted earlier).

25. The question the Court has to decide is whether there was actually a claim made that, because the applicant was wearing a uniform, he is in greater danger of now being associated with the LTTE and therefore in danger if he had to return to Sri Lanka.  A claim like this was not, in any way, spelled-out in the application.  At most, the applicant claimed that he had documentation, including photographs, which linked him with the LTTE.  His claim was that this documentation had to be destroyed because, if anyone saw it, that would mean that he would be in trouble.

26. The applicant submitted that any person who wore a uniform would be deemed to be a combatant and part of a cadre.  Military fatigues are designed to give that impression so anyone who saw the applicant in a uniform would, necessarily, be given that impression, according to the applicant.  The applicant submitted that any person who saw him in a uniform would assume that he carried a weapon and that he used it in actual combat.

27. However, according to what the applicant said at paragraph 129 of his statement, there is no documentation for anyone to make such a connection because it had all been destroyed.  It seems to me that this was a statement of fact about how his parents have had to cope with the past deeds of the applicant rather than a claim of harm.

28. In the end, the IAA made findings as to the role the applicant played with the LTTE at paragraph 80 of their reasons.

    Overall, although there have been some consistent themes in the applicant’s evidence, he has presented different versions of the timing and nature of his involvement with the LTTE. These differences have been attributed by the applicant due to his mental health, difficulties due to the conduct of the SHEV interview, his incarceration and engagement with his former representatives. The applicant’s provision of further and more elaborate details about his claimed experiences with the LTTE after the refusal of his SHEV application considered in light of his deteriorating mental health condition which is said to have caused issues with recalling information and memory and his claim that has supressed his memories of his experiences in Sri Lanka, has caused me to further doubt the accuracy of the further details and information he has provided in this regard. Nonetheless, having considered the applicant’s evidence in its entirety, I am of the view that he has consistently claimed that he did work with the LTTE for some period prior to defeat of the LTTE in the eastern province in mid-2007. I accept that due to the December 2004 tsunami, the applicant was displaced and that he resided at a refugee camp at an LTTE controlled area for some months. I accept that he worked with the LTTE to provide support for victims of the tsunami and that he was asked to join the LTTE. I accept that the under duress, he agreed to work for the LTTE as a driver and provided other logistical support such as buying food supplies and driving LTTE members from one place to another. Although I have doubts that the applicant worked with the LTTE for more than a few months, I am willing to accept that he may have been forced to assist the LTTE until their defeat in mid-2007. Considering country information reporting on the spilt between the Karuna group and the LTTE in 2004, with the Karuna group gaining support of the Sri Lankan authorities, and the applicant’s evidence that after the split there were hostilities between the two factions in the area, I accept that the applicant was aware of the fighting between the two groups and that he was fearful for his safety. I do not, however, accept that the applicant carried weapons, drove around members of the pistole gangs, forcibly recruited others or that he had any high profile or significant role with the LTTE.

29. The applicant now contends that, by wearing a uniform, the non-acceptance of the IAA of the claim that the applicant carried weapons, drove around members of the pistol gangs, forcibly recruited others or that he had any high profile or significant role with the LTTE, could not be sustained.  It is very difficult to understand how the wearing of a uniform could, in any way shape or form, undermine those findings.

30. I am satisfied that the applicant did not raise a claim that, if he were returned to Sri Lanka, people would know that he wore a uniform and therefore conclude that he was a combatant or cadre.  I am satisfied that the evidence of the applicant was that any evidence that linked him to the LTTE had been destroyed.

31. Ground 2A therefore fails.

    Ground 3

32. Ground 3 is that:

    The Authority unreasonably found that the Applicant had not worn an LTTE uniform, had not carried a weapon for the LTTE, and had not been a member/cadre of the LTTE

33. This ground is based on a partly false premise.  The IAA did not find that the applicant had not worn an LTTE uniform.  The IAA accepted that the applicant had worked for the LTTE (as seen in paragraph 80 of the reasons of the IAA).  This means that two of the aspects that make up this ground are not correct.

34. The IAA did not accept that the applicant carried weapons.  It is trite to say that it is for the applicant to establish factual matters to the satisfaction of the IAA.  The IAA did not find that “the applicant had not carried a weapon for the LTTE”; rather, it did not accept that he carried a weapon for the LTTE. 

35. There is a big difference between a positive finding (which the applicant submits the IAA made) and a conclusion of non-satisfaction or non-acceptance. The former is a factual conclusion made upon all the evidence, whereas the latter is a conclusion that the applicant has not discharged his onus of proof.

36. This ground is a complaint that it was not open to the IAA to make these particular findings.  But the IAA did not make those particular findings; it concluded that it did not accept the claims that were made. 

37. For the applicant to succeed on this ground, the applicant would have to show that it was simply not open for the IAA to not be satisfied of those claims of the applicant.  Given all of the evidence, especially the many changes in the story of the applicant, it seems to me that the conclusions, made in paragraph 80 of the reasons of the IAA, are well and truly open.

38. If the conclusions are open on the evidence, they cannot be said to be unreasonable.  No jurisdictional error has been illustrated.  Therefore, ground 3 also fails.

    The Subpoena

39. On 17 August 2023, the applicant filed a subpoena directed to the Minister requiring him to produce to the Court any documents and information existing in the form of documents provided to the Minister by the brother-in-law.  On 28 August 2023, the Minister answered the subpoena but lodged a notice of objection.

40. As already noted, the documents subject of the subpoena related to the brother-in-law who was the subject of the main argument contained in ground one of the present application.  The ground was able to be argued without the need to refer to the actual documents.  If the ground had been successful, the matter would have been remitted to a differently constituted IAA and the documents would have been able to be used in the subsequent review.  The ground was ultimately not successful and so there has not been any need for recourse to the documents.

41. The Minister objected to the provision of the documents to the applicant on the grounds that there was no legitimate forensic purpose for the applicant to inspect the documents.  The Minister also objected because the provision of the documents was unnecessary and not in the interests of justice nor of the interests of the brother-in-law.  The objection notes that the brother-in-law had not been consulted in respect of the subpoena.

42. To my mind, the production of these documents was totally unnecessary and did not enhance the argument made by the applicant in relation to ground one.

43. I uphold the objection.

    Orders

44. I dismiss the application filed on 23 February 2023 and amended on 12 June 2023 and further amended on 11 August 2023 and further amended on 29 October 2023.

    Costs

45. At the conclusion of the hearing, the counsel for the Minister foreshadowed that an application for costs beyond that of the scale amount may be made.  I will hear the parties as to costs.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       23 November 2023