AIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 484
•9 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 484
File number(s): SYG 193 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 9 April 2025 Catchwords: MIGRATION – Whether Immigration Assessment Authority failed to consider essential integer of claims – whether failure to properly assess whether to consider new information Legislation: Migration Act 1958 (Cth) ss 476, 473CB, 473DD Cases cited: AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: General Federal Law Number of paragraphs: 61 Date of last submission/s: 23 August 2024 Date of hearing: 13 May 2024, 1 August 2024, 23 August 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Stephen Hodges Solicitor Solicitor for the Respondents: Ms K Pieri, MinterEllison ORDERS
SYG 193 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 24 January 2018, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application made under s 476 of the Migration Act 1958 (Cth) (Act) filed on 24 January 2018, by which the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 17 January 2018, affirming a decision of a delegate of the first respondent to not grant the applicant a Safe Haven Enterprise (Class XE) visa (visa).
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, is not in dispute.
The applicant is a citizen of Sri Lanka who arrived in Australia, on 21 January 2013, as an unauthorised maritime arrival.
The Minister exercised his discretion under s 46A(2) of the Act, allowing the applicant to make a valid application for a specified visa, following which the applicant applied for one such visa on 27 February 2017 (Court Book (CB) 27).
On 7 June 2017, a delegate of the first respondent refused to grant the applicant the visa (CB 119). The decision of the delegate was a fast track reviewable decision and therefore was referred to the Authority for review on 13 June 2017 (CB 146 to 147).
The applicant’s claims
The applicant claimed that, if he were returned to Sri Lanka, he would be harmed because of his and his family's involvement with the Liberation Tigers of Tamil Eelam (LTTE). He claimed to fear ongoing harm because of the resentment of neighbours who had previously informed on him. He also claimed to fear harm because he left Sri Lanka without the knowledge of Sri Lanka authorities, and therefore would be a failed asylum seeker.
In support of his claims, the applicant said that:
(a)two of his uncles, and an aunt, had died fighting for the LTTE;
(b)his parents supported the LTTE by providing food, and his grandfather was held for 18 months after war;
(c)the applicant was forced to join the LTTE and fought with them for a period of four to five months in or around January 2009, until the end of the war. The applicant claimed to have been shot in the leg during this conflict and that he was treated for an injury to his shoulder;
(d)the Criminal Investigation Department (CID) visited his home twice;
(e)some of his friends who had LTTE connections began disappearing; and
(f)while he was away on a trip to Colombo, the CID visited his family home every day looking for him.
The Authority’s decision
Information before the Authority
The Authority records that it had regard to the material provided by the Secretary pursuant to s 473CB of the Act (CB 189 at [3]).
On each of 27 June 2017 and 29 June 2017, the Authority received written submissions made for the applicant, together with a number of documents. The Authority considered that the submissions could, in part, constitute argument rather than new information.
To the extent that the submissions referred to a DFAT report dated 24 January 2017, this was found to not be new information because the report had been before the delegate. The Authority identified documents which had accompanied the submissions and found them to not be new information because those documents had also been before the delegate (CB 189 at [4] to [6]).
However, the applicant also sought to introduce new information, being that he had not previously disclosed the significance of his relationship with his grandfather who was said to be a prominent LTTE member, and to have held a particular role[1] (CB 190 at [7]). The submission contended that the reason this claim had not been previously made was because of a fear that the applicant would face serious consequences if the information became known to Sri Lankan authorities. The submission contended that documentary and photographic material evidencing the relationship meant that there were exceptional circumstances to consider the new information (CB 190 at [7]).
[1] Title of role not reproduced lest it result in the identification of the applicant, in keeping with the spirit of s 91X of the Act.
Relevant to the claim about the applicant’s grandfather, the Authority identified the following documents as being new information (CB 189 at [7]):
(a)photographs of the applicant's grandfather with senior LTTE cadres including a certain LTTE leader;
(b)a copy of the applicant's grandfather’s birth certificate, together with an English translation;
(c)a copy of an English translation of the applicant's grandfather’s marriage certificate;
(d)a copy of the applicant's maternal grandfather's national identity card, together with an English translation and the translator's credentials; and
(e)an English transcript of an audio interview said to have been given by the applicant’s grandfather to a Tamil media station and a video recording of the interview (media interview).
The Authority did not accept the explanation that the reason the applicant had not previously disclosed the information about his grandfather’s alleged LTTE links was because of a fear of serious consequences had the information became known to Australian or Sri Lankan authorities. In reaching its conclusion, the Authority noted the applicant had (at his SHEV interview) disclosed information about his grandfather’s “important position” in the LTTE. The Authority was not satisfied that the applicant could not have provided the information outlined above at [10] to [11] above, to the delegate (CB 190 at [8]).
Additionally, the Authority was not satisfied that the information was credible personal information which was not previously known and, had it been known, may have affected consideration of the applicant’s claims (CB 190 at [8]). In particular, the Authority identified that, before the delegate, the applicant had identified his grandfather as having LTTE links and said that he “holds and important position in the LTTE because he has a list of all the LTTE heroes who have died in the war” (CB 190 at [8]). Given that the applicant had in fact disclosed his grandfather’s LTTE links and that he had held an important position, the Authority was not satisfied that the applicant could not have made the additional disclosure by reference to the documentation he was seeking to advance before it. Accordingly, the Authority was not satisfied that there were exceptional circumstances to consider the new information referred to at [10(a)] to [10(e)] above.
Protection findings
The Authority did not accept that the applicant had previously been imputed with an LTTE profile, nor that this would occur on return. The Authority also did not accept that the applicant was a fighter for the LTTE (CB 192 at [15], CB 198 at [33] and CB 199 at [37]). The Authority was not satisfied, individually or cumulatively, that the applicant would be harmed on return to Sri Lanka by reason of:
(a)being a Tamil from the North (CB 196 at [28]);
(b)his familial connections to the LTTE (CB 192 at [12] and [13] and CB 196 at [27] and [29];
(c)the forced recruitment by the LTTE (CB 193 at [15] and CB 198 at [33]);
(d)the scar from his injury (CB 197 at [30]);
(e)his status as a failed asylum seeker (CB 198 at [35] to [36]); or
(f)attending Tamil martyr events and posting these on social media, or should he attend such events and publish this in the future (CB 196 at [29]).
The Authority did not accept that the applicant had been imputed with an LTTE profile when he departed Sri Lanka, nor that he would be so imputed on return (CB 197 at [31]). The Authority observed that, while the applicant may hold a subjective fear of returning to Sri Lanka, the objective evidence did not support that fear as being well-founded (CB 197 at [32]). The Authority was also not satisfied that there was a real chance the applicant would face any harm as a returning failed Tamil asylum seeker (CB 199 at [36]).
For those reasons, the Authority found that the applicant did not meet the definition of refugee prescribed by subsection 5H(1) of the Act (CB 199 at [38]). Based on its earlier finding, the Authority found that the applicant did not satisfy the complementary protection criterion (CB 200 at [41] to [43]).
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed on 24 January 2018, at which time the applicant was unrepresented. The matter was initially docketed to another Judge of the Court (first primary Judge). On 19 February 2018, a Registrar of the Court made orders including a grant of leave to the applicant to amend by 11 June 2018 and listing the matter for hearing before the first primary Judge on 20 February 2019. The applicant did not avail himself of the opportunity to amend. Between 29 June 2018 and 8 January 2019 (by a series of emails) the parties were informed by the chambers of the first primary Judge that the hearing date had been vacated and a new hearing date would be notified to the parties administratively. The proceedings were later transferred to the central migration docket.
On 6 February 2019, a Notice of Address for Service was filed for the applicant by a solicitor which had the effect of entering his appearance on the record for the applicant. On 28 September 2019, a proposed amended application was filed for the applicant.
On 13 March 2024, the proceedings were docketed to me, and I made orders listing them for hearing on 13 May 2024 and granting the applicant leave to file and serve any amended application. The applicant and the first respondent were ordered to file written submissions 14 and 7 days in advance of the hearing, respectively. The first respondent filed submissions as ordered. The applicant’s written submissions were filed out of time, 4 days before the hearing.
At the hearing on 13 May 2024, the applicant was represented by Counsel and the first respondent was represented by a solicitor. At the commencement of the hearing, Counsel for the applicant apologised for the lateness of the applicant’s written submissions, said to have been caused by the illness of the applicant’s solicitor. Leave was granted to the applicant, without objection, to rely upon the amended application which had been filed in September 2019 outside of the time granted by the Registrar (Amended Application), and upon the written submissions filed on 9 May 2024. The Court Book was tendered by the applicant and marked Exhibit “1A”.
Grounds of review
By the Amended Application the applicant raises the following two grounds of review (particulars omitted):
1.The Authority failed to consider an essential integer of a claim raised in the 27 June 2017 submissions sent to the Authority.
2.The Authority’s findings that the new information did not meet both limbs of s 473DD was affected by jurisdictional error.
Given that ground 2 directs itself to new information which relates to the same subject matter as claims which are the subject of ground 1, it is convenient to address ground 2 first.
Additional matter
In the course of preparing these reasons for judgment, I asked my Associate to write to the parties in the following terms (July email):[2]
In preparing the judgment in the above-mentioned matter, a question has arisen which was not fully ventilated by the parties and with which her Honour requires assistance:
• Ground 1 alleges a failure on the part of the Authority to consider an integer of the applicant’s claims. The applicant contended at hearing that his claim pertaining to his grandfather’s LTTE activities had two limbs. Firstly, his grandfather’s current activities and the second being whether or not the applicant would face harm because he is perceived as a supporter or because his grandfather is such a supporter. The applicant submitted that while the Authority commenced on a correct identification of the claims at [29] of its reasons, it failed to consider each of them by failing to specifically deal with whether or not the grandfather would be perceived as a member of the diaspora working towards Tamil separatism.
• Ground 2 takes issue with the manner in which the Authority applied s 473DD to new information relating to the grandfather.
• In its decision the Authority identified the applicant as having made a claim that his grandfather “holds an important position in the LTTE because he has a list of all of the LTTE heroes who have died in the war.” (CB 190 at [8]). The Authority also referred to the applicant seeking to introduce new information that his grandfather was in charge of [TITLE]. This latter title appears on its face to potentially be the same role as initially described by the applicant and, in any event, also to be an integer which was not expressly considered by [29].
The parties are invited to make further submissions in relation to the third bullet point and what, if anything, it does to change or augment the parties’ submissions in respect of the grounds as presently raised and argued.
The parties are asked to reach a consensus as to whether the issue might be better ventilated by written submissions or a brief, additional hearing opportunity. Her Honour invites a joint written response by 4:00pm on 26 July 2024. In the event that an agreed position is not reached, the parties should provide their availability for times for a directions hearing to be held in the next fortnight.
[2] Anonymisation added to omit the title referred to at [11] above and footnote 1
When the parties were unable to reach an agreement as to the way forward, the matter was listed for directions before me on 1 August 2024. On that date, the parties came before the Court, and after hearing their respective submissions, I made orders allowing the applicant to re-open his case, to amend and for a regime to enable further submissions from the parties, as follows:
1. Leave is granted to the applicant to reopen his case.
2. The applicant must file and serve the following documents by 4:00pm on 23 August 2024:
a. a further amended application giving full particulars of the grounds relied upon; and
b. supplementary written submissions not exceeding 8 pages, with a Word version of the same provided to the Chambers of Judge Given by email on the date of filing.
3. The first respondent must file and serve supplementary written submissions not exceeding 8 pages by 4:00pm on 13 September 2024, with a Word version of the same provided to the Chambers of Judge Given by email on the date of filing.
4. Judgment is reserved from the date of the filing of the written submissions referred to in Order 3, to a time to be notified to the parties.
On 20 August 2024, the Court was copied to an email sent from the applicant’s solicitor to the first respondent’s solicitors, in the following terms:
Kerrie
Mr Godwin has advised on the prospect of reopening and amending.
I am instructed that the applicant will not file any more material.
At my direction, my Associate wrote to the parties on 21 August 2022 to make clear to the parties that it is not appropriate to simply copy the Court to inter partes correspondence as a means of conveying information to the Court. It is much less so in circumstances where, the applicant having urged the Court for orders to re-open and amend, he now sought to be excused from compliance therewith. The parties were informed that if the aforementioned email was intended to be a request made to the Court to be excused from compliance with those orders, it did no such thing. The Court had, by the July email, required additional assistance with a particular issue and it was at the applicant’s request that the Court made orders, in mandatory terms, for the filing of an Amended Application and written submissions to address that issue. Accordingly, the proceedings were listed for further directions (by Microsoft Teams) on 23 August 2024 to address this development. Subsequently, the Court received email correspondence from the solicitor for the applicant to apologise for the discourtesy of the aforementioned email. That apology was appropriately made, and was accepted.
On 23 August 2024, the parties appeared before the Court for directions. On that occasion the applicant’s response to the issues identified in the July email was clarified and is set out below at [34] to [36]. In the circumstances, the first respondent made no additional submissions.
Ground 2
The second ground of the Amended Application takes issue with the Authority’s application of s 473DD(b)(ii) of the Act at [8] of its decision.
The applicant says that the new information he advanced was probative of his grandfather’s senior position in the LTTE and reflected the ongoing support of the Tamil independence by the grandfather and/or the applicant. In support of that submission, the applicant specifically referred to various quotes from a media interview in which his grandfather was said to have participated, each of which referred to Tamil separatism and/or liberation.
The applicant contends that the information in question constituted personal information about the applicant’s grandfather which was not known to the delegate, and was credible in the sense that it was “capable of belief”, citing see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) and AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90.
Having regard to the UK Home Office information about the post-war experience of people who still support Tamil separatism, the applicant says the information could have made a difference to the outcome of the review. For those reasons, the applicant says that the Authority’s finding that the new information did not meet s 473DD(b)(ii) of the Act was legally unreasonable.
In respect of the issues raised by the Court in the July email, at the directions hearing on 23 August 2024, Counsel for the applicant submitted the following in respect of the additional issue. The first aspect raised by the Court had been whether or not the title given to the grandfather was itself new information. The second was, if it was new information, had it been dealt with appropriately by the Authority, namely had it properly exercised its powers under ss 473DC and 473DD of the Act. Having further considered his position, the applicant acknowledged that while it possible that the positions allegedly held by the grandfather might be one and the same, the title given to the Authority in submissions was clearly different to that which had been given by the applicant to the delegate, it was therefore new information.
The applicant also then quite properly acknowledged that, while the Authority did not expressly state that it exercised its power under s 473DD to exclude that particular information, based on current case law there was no inference available simply from the absence in the reasoning in relation to a procedural matter such as exercise s 473DD that the section had not been applied. Accordingly, the applicant did not ask the Court to draw the inference that this was not addressed. Those concessions are properly made. Understandably, the first respondent had nothing to add.
In respect of the ground of review as initially argued at hearing, the first respondent submits that the Authority had express regard to each of the limbs of s 473DD(b) of the Act in its consideration of the new information, gave cogent reasons for why it was not satisfied those limbs were met and that, in essence, the ground merely seeks to disagree with the Authority’s findings.
Consideration
In AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494, the High Court made clear that the Authority is required to evaluate new information against the criteria in s 473DD(b)(i) and (ii) before reaching a conclusion, under s 473DD(a), as to whether exceptional circumstances existed to justify considering the new information as part of its review.
Section 473DD provides that:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In the present case, I agree with the submissions of the first respondent that each of the limbs of s 473DD(b) was considered.
In respect of s 473DD(b)(i), this was addressed in the first part of [8] where the Authority initially considered the applicant’s explanation for why the material had only been forthcoming at a later juncture. The applicant did not ever claim that the material could not have been provided to the delegate before their decision was made. Rather, the explanation directed itself to why the material was not given earlier, namely that he feared the consequences of doing so. The Authority considered the explanation and rejected it for reasons which it gave.
In respect of the second limb, the Authority considered whether the information in question was credible personal information.
In CSR16 (supra), Bromberg J found the Authority had erred by imposing a higher standard of satisfaction than required by s 473DD(b)(ii) criteria. The s 473DD(b)(ii) limb requires the Authority to be satisfied that new information is credible. In CSR16 this term was held to mean credible in the sense of being open to, or capable of, being accepted by the Authority as truthful, accurate or genuine. At [41] to [42] of CSR16, Bromberg J held:
In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration & Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
The applicant says that in the absence of any suggestion that the photographs in question had been doctored, or that the video footage the applicant sought to advance was a fabrication, on its face the material was capable of belief. That may be so, however, the language of s 473DD(b)(ii) is internally cumulative and the information must satisfy all 3 components therein.
Next, the applicant says that, by reference to the UK Home Office report about people who are still supporting Tamil separatism following the war, this was information that could have made a difference to the outcome of the Authority’s review. That may also be so. However, while the Authority did not specifically suggest that the material was not capable of belief nor that it may not have made a difference, it overall found ss 473DD(b)(ii) not to have been met. Giving the requisite beneficial construction[3] to its findings, it is tolerably clear that by [8] of the Authority’s decision, its lack of satisfaction that s 473DD(b)(ii) was satisfied because the applicant had been aware of his grandfather’s links and had exposed them to a sufficient degree, such that it could not be said that the information was not previously known. As such, the Authority considered the second limb of s 473DD(b)(ii) before concluding that it was not satisfied there were exceptional circumstances to justify considering the new information.
[3] XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 at [27]
The error as alleged by ground 2 is not established.
Ground 1
The first ground alleges that the Authority failed to consider the risk of harm to the applicant and his family arising from his grandfather’s political involvement in the diaspora. At hearing, Counsel for the applicant confirmed that the first particular to the ground was no longer pressed. Absent that particular, ground 1 takes aim primarily at [29] of the Authority’s reasons for decision which, while lengthy, warrants being set out in full (omitting footnotes, emphasis added):
I have considered whether the applicant’s familial links to LTTE fighters/supporters and his grandfather’s ongoing importance as an ex-LTTE member and his posting on social media would give rise to a real chance of harm to the applicant on return to Sri Lanka. I note that there is no indication of any interest in the applicant’s family due to these same family connections, or because his parents commemorated the deaths of their relatives or provided food to the LTTE. I note that the applicant’s father was in the IDP camp with the family and there is no indication that he came to any harm, or was under suspicion because of the family links or his own past support. Both his uncle and grandfather spent some time after the war imprisoned, indicating that their LTTE connections were known, yet the family were able to return to live openly in Jaffna. There is no indication that family members came to harm after the war because of these links, despite the claim that the applicant’s parents moved into LTTE territory to avoid the harassment they faced during the war from the authorities because of their connections to his mother’s relatives. Noting the passage of time since the end of the war and that the UK Home Office noted that the Sri Lankan government‘s concern has changed since the civil war ended and the government’s present objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan state, I am not satisfied that the applicant would face harm in Sri Lanka because of his familial links to LTTE fighters/supporters. I note the applicant has attended Tamil martyr events in Australia and has posted this on social media, and I note his comments at his SHEV interview that the army disrupted a recent similar event in Sri Lanka. However I am not satisfied that expressing support for LTTE martyrs or attending commemorative events would result in harm in Sri Lanka. DFAT reports that in 2015, the Government changed the name of the day commemorating the end of the war from Victory Day to War Heroes Remembrance Day and for the first time gave official approval for memorial events to take place in the north and east. I note that the UK Home Office reported that the International Truth and Justice Project cited cases where “family members had been questioned about their participation in antigovernment protests or war commemoration events abroad. Some reported the Sri Lankan security forces had showed them, or their families, photographs of themselves at these protests … [indicating] the Sri Lankan security forces are monitoring these gatherings outside the country”. However I note that the UK Home Office reported the Upper Tribunal recognised those with a significant role in post-conflict Tamil separatism as being at risk and I am not satisfied that the applicant would be perceived as such.
The emphasis in the above paragraph is the applicant’s, who contends that it is that part of [29] which makes clear that the Authority failed to consider the claim that his grandfather as working for Tamil separatism as part of the diaspora.
Counsel for the applicant acknowledged that the claim the subject of ground 1 was not raised directly by the applicant before the delegate. However, the applicant contends that from the Authority’s acceptance of:
(a)the applicant’s anterior claims that his grandfather was the custodian of a “list of all the LTTE heroes who have died in the war”;
(b)that the grandfather had posted information about LTTE activities to social media; and
(c)was living in the diaspora in India;
the claim should be taken as being implied, particularly when read together with the country information contained in the UK Home Office report entitled "Country Policy and Information Note. Sri Lanka: Tamil separatism. Version 4.0", 31 March 2017” (UK Home Office report) which is referred to in a footnote to [29] of the Authority’s reasons.
The applicant says that his grandfather’s post-war role in the diaspora in India was not considered by the Authority as being a separate integer of his claims. The applicant contends that when the Authority said it had considered the applicant’s family links to the LTTE supporters, and the grandfather’s ongoing importance as an LTTE member, this suggested the claim would be dealt with later. The applicant says that, despite this, by the time the Authority concluded that his family were able to return to live openly in Jaffna, no consideration as to whether family members came to harm after the war because of those links, took place. Rather, the applicant says that the Authority moved on to examine the activities of the applicant since he left Sri Lanka, in the context of that UK Home Office Report, and concluded that it was not satisfied he would be perceived as such.
The applicant says the claim regarding his grandfather had two limbs:
(a)that his grandfather’s current activities; and
(b)whether or not the applicant would face harm because of that, either because he is perceived as a supporter or because his grandfather is such a supporter. The applicant says that, while the Authority commenced on a correct identification of the claims, it did not go on to consider each of those claims by failing to specifically deal with whether or not the grandfather would be perceived as a member of the diaspora working towards Tamil separatism.
The first respondent submits that the Authority made dispositive findings in respect of the grandfather’s connection to the LTTE at [29] of its decision, considered the applicant’s claims and evidence in the appropriate context, and made findings which were open to it.
The first respondent relies on the fact that the claim regarding the grandfather “actually wasn’t really raised before the delegate”[4] but rather, that the claim made was that the grandfather had posted on social media, had a list of war heroes and also had to flee to India, as opposed to being a claim that the grandfather was involved and/or outspoken in the Tamil diaspora. In those circumstances, the first respondent says that the Authority did not have to consider the claim and, to the extent it could be implied it was subsumed in the Authority’s findings of greater generality.
[4] Transcript dated 13 May 2024 at T.07.13
Consideration
In order to understand and determine this ground, it is necessary to have regard to the manner in which it was raised initially before the delegate.
Paragraph [29] of the Authority’s’ reasons commences:
I have considered whether the applicant’s familial links to LTTE fighters/supporters and his grandfather’s ongoing importance as an ex-LTTE member and his posting on social media would give rise to a real chance of harm to the applicant on return to Sri Lanka.
Attached to the applicant’s visa applicant was a written statement of claims in which the applicant discussed, inter alia, the connections his family had to the LTTE. These were:
(a)that the applicant “had three uncles, a grandfather and one aunt that were involved in LTTE. These relatives are all on my mother's side. My parents supported the LTTE by providing food. My father did not fight in the LTTE. My two uncles and aunties fought in the LTTE and all died”(CB 65 at [12] to [13]);
(b)that a high-ranking person in the LTTE sent a letter to the applicant’s grandfather and uncle for the applicant to use to prove that his family was supportive of the LTTE (CB 66 at [18]);
(c)the applicant’s LTTE-affiliated uncle who had survived, later moved to Germany (CB 68 at [28]);
(d)the applicant’s grandfather “fled to India because of his involvement in the LTTE. My grandfather holds an important position in the LTTE because he has a list of all of the LTTE heroes who have died in the war. After the war, my grandfather was in jail for one and a half years.” (CB 68 to 69 at [29]);
(e)the grandfather “was also tortured when we was detained by the CID. Nails were hammered under his finger nails. My grandfather told me about this. I am afraid that they will make me disappear and say that I was never detained.” (CB 70 at [36]);
Next, the manner in which the delegate expressed and determined the applicant’s claims about familial links was as follows (CB 122):
(a)the part of the delegate’s decision which dealt with the applicant’s family members and their links to the LTTE was headed:
Familial links to LTTE – Applicant had several family members that fought with the LTTE
(b)under that heading the claims were summarised as follows:
The applicant claims in his written statement of claims that he had three uncles, one aunt and a grandfather (all on his mother’s side) that were involved with the LTTE. The applicant claims that during the war his aunt and two of his uncles died fighting for the LTTE. The applicant also claims his parents supported the LTTE by providing food.
(c)the delegate accepted that:
…the applicant had a relatives on his mother’s side who were members of the LTTE
(d)the delegate was also:
…willing to accept the applicant’s claims that his uncle who fought for the LTTE has fled Sri Lanka and sought asylum in Germany and his grandfather who also fought with the LTTE has fled Sri Lanka to India.
(e)and concluded:
However, there is no information before me which indicates that the applicant attracted adverse attention from the Sri Lankan authorities because of this familial link to the LTTE. The applicant did not claim to have ever been targeted because of his family member’s involvement with the LTTE.
There are aspects of the applicant’s claims about the grandfather which were not particularised in detail by the delegate, yet were later identified by the Authority, namely that:
(a)the applicant’s claim about his grandfather’s “important position in the LTTE because he has a list of all of the LTTE heroes who have died in the war”; and
(b)that the grandfather had posted information on social media.
A fair reading of the delegate’s decision reveals no mention of the aforementioned claims, even in substance. The only mention of social media in the delegate’s decision is a reference to the applicant’s own social media activities (CB 125). It can be accepted that the Authority does not thereafter in [29] make express reference again to the grandfather’s ongoing importance and social media activity. However, I am not satisfied that this constitutes a failure on the part of the Authority to consider this as a separate integer. Rather, I accept the submissions of the first respondent that these specifics regarding the grandfather were not raised before the delegate in the terms now contended for. Having regard to the manner in which the delegate expressed its findings about the family members, and the manner in which the Authority later reasoned, I am satisfied that the claims about the applicant’s grandfather were considered as part of its broader findings in that paragraph, having specific regard to:
(a)the Authority expressing stating at the outset of [29] that it has considered both the familial links and the grandfather’s ongoing importance; and
(b)that by the next sentence of [29] the Authority finds there to be no indication of interest in other family members “due to these family connections”.
Accordingly, ground 1 is also not made out.
CONCLUSION
Neither of the grounds in the Amended Application has been made out.
I am satisfied that the decision of the Authority is not affected by error as alleged, or at all. Absent jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 9 April 2025
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