ABG17 v Minister for Immigration
[2018] FCCA 778
•2 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 778 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – application for protection visa – unauthorised marine arrival – claim of persecution on the basis of ethnicity, political opinions or member of a particular social group – fast track decision – nature of review – failure by applicant to particularise grounds of review – natural justice hearing rule – operation of common law principles do not apply to fast track reviews – country information central to decision – real chance – no merit in grounds for review advanced by applicant – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.2A, 5(1), 5H, 5H(1), 5J, 7AA, 35A, 36(2), 36(2)(a), 36(2)(aa), 65, 46A, 474, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD |
| Cases cited: DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 NABE v Minister for immigration & Multicultural & Indigenous Affairs [2004] 144 FCR 1 |
| Applicant: | ABG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 1 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 23 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 2 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr O'Leary |
| Solicitors for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 5 January 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 1 of 2017
| ABG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Immigration Assessment Authority “the IAA” made on 12 December 2016. In that decision, the IAA affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[1] “the Minister” not to grant him a protection visa pursuant to the provisions of the Migration Act 1958 “the Act”.
[1] As the Minister for Home Affairs was now previously known
The application is a citizen of Sri Lanka, who arrived by boat, on 11 October 2012. As such, he is classified, under the provisions of the Act, as an unauthorised marine arrival. The effect of this classification is to prevent him being automatically able to seek any form of visa to remain in Australia, unless the Minister authorises it.
On his arrival in this country, the applicant claimed to Australian government officials that he was not able to return safely to Sri Lanka because of his involvement and the involvement of his family in organisations opposed to the Sri Lankan government, particularly the LTTE and the TNA (the Tamil National Alliance).
On 27 October 2015, the Minister lifted the bar, pursuant to section 46A of the Act. This enabled the applicant to make a valid application for a protection visa, which he would otherwise have been unable to do, given the unauthorised manner of entry to Australia. The visa application was made on 30 December 2015.
As a consequence, the applicant was interviewed by immigration officials in order to ascertain the basis on which he claimed protection in Australia. In addition, he provided a statement, in support of his application. The various grounds on which he claimed to be entitled to the protection of Australia can be summarised as follows:
·The applicant is an ethnic Tamil and Hindu;
·He was born in April 1985 in a village in the Batticaloa District of the Eastern province of Sri Lanka, which during the civil war was controlled by the LTTE;
·His older brother was killed by the Sri Lankan Army, in June 1992, because he was wrongly suspected to be a member of the LTTE;
·Two other older brothers were subsequently targeted for adverse attention by the Sri Lankan military and decided to leave Sri Lanka – one went to the United Kingdom; the other to Qatar but in 1997 returned to Sri Lanka;
·The applicant and his family faced problems from the Karuna group after it defected from the LTTE because this group perceived the family to be aligned with the LTTE;
·The applicant left school in 2003 and began to work on the family farm. He was forced by the LTTE to use the farm’s tractor to transport stores for the LTTE. These activities drew him to the attention of the authorities and he left for Qatar in 2005;
·The applicant returned to Sri Lanka in March 2009, which was at the height of the civil war;
·On his arrival in Sri Lanka, the applicant was forced to report to a Special Task Force “STF” camp, where he was regarded with suspicion because he was returning to Sri Lanka from overseas and it was assumed he was associated with the LTTE;
·Two weeks later (April 2009), after being allowed to leave the camp, the applicant was rounded up and taken back to the STF camp, where he was detained for a day and interrogated about his and his brother’s alleged membership of the LTTE;
·On his release from the STF camp, the applicant was directed to report there weekly for three months, which he did until released from this requirement in June of 2009;
·In June/July of 2012, the applicant had unsuccessfully attempted to leave Sri Lanka by boat but the vessel on which he had embarked had been intercepted by the Sri Lankan Navy and he had been returned and charged with illegally departing the country;
·As a consequence of the charge, the applicant was detained for two weeks and appeared in court twice. The charge against him was not finalised, when he again departed Sri Lanka;
·In August of 2012, the applicant was a member of the Youth Awakening Association and Youth Sports Association, which led to him assisting a TNA candidate’s campaign for regional election. He assisted with putting up posters and organising and attending meetings until September of 2012 and was very visible;
·As a consequence of his activities, he came to the notice of members of the Tamil Makkal Viduthalai Pulikal “TMVP” who telephoned him and threatened him with death if he continued with his TNA activities;
·After the TNA candidate, whom the applicant was assisting, was elected on 8 September 2012, two TMVP members visited his home on 10 September and told his mother they would kill the applicant if they saw him;
·The applicant reported this threat to the police who told him not to worry about it;
·The applicant continued to receive threatening telephone calls from the TMVD;
·Because of his fear of suffering harm, from the TMVD, the applicant again decided to leave Sri Lanka illegally by boat in September 2012.
As a consequence of these matters, the applicant claims the protection of Australia because he fears harm at the hands of the Sri Lankan authorities because of the following factors:
·His imputed association with the LTTE;
·Threats received by him from the TMVD;
·His association with the TMA, which led to these threats;
·The unresolved circumstances surrounding his first unsuccessful departure from Sri Lanka;
·His national identity card identifies him as a Tamil from the East of Sri Lanka.
The applicable legal framework under the Act
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
Section 35A creates a category of visa, under the Act, known as protection visas. This category includes a class of temporary visas, known as safe haven enterprise visas (SHEV) or temporary protection visas (TPA).
On 9 December 2015, the applicant was invited to apply for either a SHEV or a TPA by a delegate of the Minister. The criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994 particularly subclass 785 and 790. In general terms, in the case of both such visas, the applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance the applicant would be persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. Subsection (2A) defines significant harm. It includes being subject to torture; being subjected to cruel or inhumane treatment; and degrading punishment and treatment. This is known as the complementary protection criterion.
Accordingly, the issue to be determined initially by the ministerial delegate was whether there was a real chance the applicant would be subject to persecution, if returned to Sri Lanka because of his Tamil ethnicity; his political opinions; or because he was a member of particular social group, namely failed asylum seekers.
On 26 August 2016, the ministerial delegate declined to grant the applicant a SHEV. This decision engaged the processes delineated in Part 7AA of the Act – the fast track review process, which is conducted by the IAA.
The Act was amended as a consequence of the ascent of the Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. In general terms, the amendment provided for a fast track review process in respect of unauthorised maritime arrivals to Australia, in respect of whom the Minister had lifted the bar.
In particular, section 5 of the Act was amended to include a definition of a fast track applicant, who is a person:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
Section 5(1) also defines what is meant by the term fast track decision. In general terms, it is a decision to refuse to grant a protection visa to a fast track applicant. It is common ground between the parties that the applicant in these proceedings is a fast track applicant, given the circumstances surrounding his arrival in Australia.
The Minister is required to refer decisions, relating to fast track applicants, to the IAA, for a limited form of review [section 473BA] as soon as reasonably practicable [section 473CA] after a decision is made. In the current matter, the decision was referred to the IAA on 29 August 2016 and a decision made by the IAA on 12 December 2016.
Section 473CB sets out the material, which the Secretary of the Department must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker: and any other material considered to be relevant.
Section 473CC provides as follows:
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Section 473DA exhaustively delineates the manner in which the review process is to be undertaken by the IAA. In particular the content of Part 7AA is taken to be a complete statement of the requirement of the IAA to provide natural justice to the applicant in any process of review it undertakes.
In particular, the IAA is not obliged to provide any material, which was before the ministerial delegate, when a decision was made concerning the granting of a visa under the Act. Essentially, the provision operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority. [2]
[2] See DBE16 v Minister for Immigration & Border Protection [2017] FCA 942
Section 473DB further limits the manner in which a fast track review is to be conducted and the material, on which the decision is to be based. Firstly, the fast track review is to be made without accepting or requesting new information and secondly, without interviewing the referred to applicant. In basic terms, the review is to be conducted on the papers.
Pursuant to section 473DC the IAA may obtain new information, including interviewing any applicant, relating to the matter under its review. This information must satisfy two criteria. It must be information which was not before the original decision-maker; and it must be considered to be relevant. The section stipulates that the IAA is not under any duty to seek such information, even if requested to do so.
Section 473DD provides further strictures on the IAA’s receipt of new information. It must be satisfied that there are exceptional circumstances to justify its consideration of the material in question; it could not have been provided to the delegate prior to the original decision being made; and, in the case of personal information, it is credible and not previously known but may have affected the decision under review.
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection [3] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[3] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
The Delegate’s Decision
The delegate did not accept that the applicant’s family was imputed with a LTTE profile or that he himself was of adverse interest to the Sri Lankan authorities after June 2009. In addition, it was found that his political activities, prior to his departure in September 2009 were not of such significance to draw adverse attention from either the TMVP or the Karuna group. Finally, the delegate had access to country information relating to Sri Lanka, which caused it to conclude that the applicant would not face a real chance of persecution, if returned there.
The IAA’s Decision
The significant findings of the IAA can be summarised as follows:
·The applicant is an ethnic Tamil of Hindu religion, who originated in Batticaloa in the Eastern Province of Sri Lanka;
·It rejected the assertion that the applicant and his family were subject to the attention of the Karuna group because he and they were perceived to be LTTE sympathisers or for any other reason prior to 2012;
·However, it accepted many of the assertions of the applicant regarding events which had occurred to him and other members of his family during the civil war and its aftermath in 2009;
·In particular, it accepted that the applicant’s oldest brother had been killed by the Sri Lankan Army “the SLA” in 1992 and his two other brothers had left the country, between 1992 and 1996 because of their targeting by authorities because of imputed LTTE connections;
·It accepted that the applicant himself had assisted the LTTE in 2003/04 whilst working on his family farm;
·It also accepted that the applicant himself had left Sri Lanka for Qatar in 2005 after being threatened by the SLA as a consequence of these activities;
·It noted that he had returned to Sri Lanka in 2009 because his work permit had expired. In this context, it was found that the fact that he was not intercepted at the airport, either on departure or return was indicative that he did not have a profile with Sri Lankan authorities at these stages;
·It accepted that the applicant had been required to report to the STF camp on his return and had been rounded up two weeks later and taken back there, where he was interrogated and accused of LTTE activity;
·It further accepted that the applicant was required to report at the camp weekly for the next three months;
·It noted that the applicant was released from his reporting requirements in June of 2009. In these circumstances, it was not satisfied that the Sri Lankan authorities had any interest in him thereafter because of any perception that he was involved with the LTTE;
·It accepted, that whilst the applicant was not a member of the TNA, he had assisted one of its candidates in local elections by organising meetings and distributing canvassing material and as a consequence he had come to the attention of members of the TMPV, who had threatened and tried to intimidate him;
·The IAA characterised the applicant’s involvement with the TNA as being low level. In this context, it accepted that he had received threatening phone calls from the TMPV but doubted he had been more actively targeted;
·The IAA accepted that the applicant had illegally departed from Sri Lanka in June 2012, which had led him to being detained for two weeks, after which he had absconded, following his release;
·The IAA did not accept that the court case against him was continuing after he left Sri Lanka again in September 2012.
On the basis of these factual findings, the IAA turned to consider the applicant’s claims for protection within the rubric of sections 5H(1) and 5J. It found as follows:
·The applicant’s low level involvement with the TNA had not created such a political profile that would lead him to being targeted if he returned to Sri Lanka;
·Country information indicated that the Karuna Group and TMVP had diminished in power. As such, the applicant would not face a real chance of persecution from either group as a consequence of any political views imputed to him as a consequence of his involvement with the TNA;
·Again on the basis of country information, it did not accept that the Sri Lankan authorities would have an interest in the applicant because of his family’s previous involvement with the LTTE or his Tamil ethnicity.
In this context, the IAA found as follows:
“I am satisfied that upon his release from reporting condition in June 2009, the Sri Lankan authorities did not suspect him to be an LTTE member or supporter. I am satisfied the authorities no longer have any adverse interest in the applicant – for LTTE reasons or otherwise.
I note country information does not indicate that Tamils are currently at risk of persecution in Sri Lanka purely on account of their race, nor when they originate in an area previously controlled by the LTTE.”[4]
[4] See Case Book at page 283 [26] – [27]
The IAA also found that:
·The applicant’s relationship with his brothers, who had been adversely affected because of LTTE associations would not result in the applicant himself facing a real chance of being harmed, if returned to Sri Lanka;
·The applicant would be identified as a failed asylum seeker, who had departed Sri Lanka illegally, if returned. However, country information indicated that many individuals in this situation were liable to being charged, convicted and then fined for illegal departure, rather than being subjected to persecution.
In summary, the IAA found as follows:
“I have considered the risk of harm to the applicant, a Tamil Hindu male from Batticaloa in the Eastern Province, whose oldest brother was killed by the Sri Lankan Army (SLA) in 1992 and whose two other brothers faced problems from authorities prior to their departures from Sri Lanka in the 1990s, who was himself harmed by the SLA for helping the LTTE in 2003-04 and was detained for a short period in a round-up in April 2009 and subject to reporting requirements until June 2009. I have considered these factors together with the applicant’s problems with the TMVP for supporting the TNA in the September 2012 elections. Even with these previous circumstances and that the applicant would be returning as a failed asylum seeker who twice departed illegally, has himself spent a considerable period in Australia and whose brothers form part of the Tamil diaspora in the UK and Qatar, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution.”[5]
[5] Ibid at 288 [48]
It also found that the complementary protection considerations, arising under section 36(2)(aa) of the Act applied to the applicant. Accordingly the decision of the delegate was confirmed.
The Grounds for Appeal
The applicant has acted on his own behalf throughout these proceedings. I appreciate that given the arcane nature of judicial review principles, including in the area of immigration law, this is a particularly difficult task for anyone who is not legally qualified.
Pursuant to section 474 of the Act, a decision of an administrative nature relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[6]
[6] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[7]
[7] See Craig v South Australia (1995) 184 CLR 163
In Minister for Immigration & Citizenship v Li[8] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[8] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]
Jurisdictional error is a complex concept. It can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction conferred on the decision-maker concerned. As indicated above, the natural justice obligations, conferred on the IAA, are subject to the limits provided by Part 7AA.
In this particular case, although the applicant is unrepresented and presented as having no legal background, his grounds of appeal appear to have had some form of input from a legally qualified source, even if that source is at far remove from the applicant himself.
In the application, the applicant has provided nineteen grounds of review, which are un-particularised by reference to any specific portion of the IAA decision. Rather, the applicant has asserted jurisdictional error in broad terms, which can be characterised as follows:
·denial of natural justice in the sense that he was not able to present his case or provide evidence to the IAA;
·the review process was not fair:
·the IAA took into account irrelevant considerations or failed to consider relevant ones or give them appropriate weight;
·the IAA failed to apply the statutory criteria relevant to its jurisdiction;
·the IAA was biased against the applicant;
·the IAA’s decision was legally unreasonable; and
·the IAA’s reasons were inadequate.
On this basis alone, the application is subject to dismissal. The Federal Court, in a number of decisions, has held that a failure to particularise a ground of review is sufficient basis for it to be dismissed.[9]
[9] See SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [21] per Reeves J; WZAVW v Minister for Immigration & Citizenship [2016] FCA 760 at [35] per Gilmour J
More specifically, the limited review process, provided by Part 7AA, does not require or entitle any applicant to be invited to appear before the IAA or provide an applicant with a right to provide additional evidence to it.
Rather, pursuant to section 473DB, the review is to be conducted on the papers. Section 473CB provides what those papers are to be. The applicant does not contend that the material provided to the IAA was different to that which was before the delegate.
In addition, section 473DA provides an exhaustive statement of the natural justice hearing rule in relation to review conducted by the IAA. In DBE16 v Minister for Immigration & Border Protection[10] Barker J, after summarising the stipulated mechanisms applicable to fast track reviews said as follows:
“The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.”
[10] DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 at [61]
He also noted that, in distinction to AAT reviews, arising under Part 7, given the nature of section 473DA(1) there was no scope for the operation of common law principles to apply to fast track reviews. Section 473DB(1) makes it clear that the IAA may conduct such a review without accepting or requesting new information or interviewing the referred applicant. In these circumstances, the applicant is unable to make out any jurisdictional error on the basis of an allegation of breach of natural justice.
The applicant further contends that the IAA has failed to consider relevant material and/or considered irrelevant material. What that material is, is not specified. It is, however, obvious from a fair reading of the IAA’s decision that country information available to it, relevant to the current situation confronting Tamils in Eastern Sri Lanka was central to its decision.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[11] the Full Court, in the context of a Tribunal Review, said as follows in respect of country information:
“There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
[11] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]
In my view, from a reading of the IAA’s decision, which is of reasonable length, it cannot be said that it failed to consider a claim for protection that had been “clearly articulated” or “squarely raised” by the applicant.[12] The IAA delineated each integer of the applicant’s claim for protection and reached conclusions in respect of all of them. As such, it made a proper evaluation of the review material forwarded to it pursuant to section 473CB and elected, as it was entitled to do, not to seek further material.
[12] See NABE v Minister for immigration & Multicultural & Indigenous Affairs [2004] 144 FCR 1 at 18
In these circumstances, it is clear that it completed the review process required of it by Part 7AA. In my view, it provided extensive reasons to support its conclusion and there is nothing apparent from those reasons to support any assertion they are legally unreasonable. In any event, the applicant himself has not specifically identified some aspect of the IAA’s reasoning which is illogical or lacking in intelligibility.
To the contrary, the IAA accepted many aspects of the applicant’s case. However, particularly in the context of country information available to it, it did not accept that there was a real chance the applicant would suffer persecution, if returned to Sri Lanka. Accordingly, I am satisfied that the IAA properly acquitted the review process conferred upon it. I appreciate, however, it would be his preference to have a different outcome.
Apart from the assertion of bias, the applicant has not specifically identified any incident of either actual or apprehended bias in the IAA decision. For obvious reasons, an allegation of actual bias requires proof; whilst apprehended bias must be firmly established.
The applicant has not provided any particulars as to why he asserts that the IAA has closed its mind towards his case or was otherwise incapable of changing its view; or that a fair-minded and informed observer might reasonably apprehend that the IAA might not have brought an impartial mind to bear on its decision. It is not sufficient for the applicant merely to assert bias.
For these reasons, I have come to the conclusion that there is no merit in any of the grounds for review advanced by the applicant. I accept that the IAA conducted the review required by Part 7AA of the Act, particularly in terms of exercising the jurisdiction conferred upon it, which was to determine whether there was a real chance the applicant would suffer persecution if returned to Sri Lanka. After considering all the evidence referred to it and determining that no further evidence was warranted, it determined that there was no such chance. I am not entitled to substitute my own judgment in respect of the evidence, which was available to the IAA. For that reason, the application must be dismissed.
The Minister seeks costs fixed in the sum of $7,000.00, which is slightly less than allowed by the applicable scale. I will make an order to this effect.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 2 May 2018
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