AJY18 vs Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1384
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
AJY18 vs Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1384
File number: MLG 215 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 13 December 2024 Catchwords: MIGRATION – Application for Judicial Review of reasons of the Immigration Assessment Authority – whether there was a failure to consider claims – whether the Authority made findings that were unreasonable – HELD that no error established – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 5J(1)(a), 5J(5), 36(2A), 36(2)(aa).
Immigrants and Emigrants Act 1949 (Sri Lanka).
Cases cited: EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796
Republic of Nauru v WET040 (No 2) (2018) 93 ALJR 102
Number of paragraphs: 88 Date of hearing: 21 October 2024 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Vrachnas and Co Lawyers Solictors for the Respondents: Mr Plitsch of the Australian Government Solicitor ORDERS
MLG 215 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJY18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application filed on 29 January 2018, as amended on 14 October 2024, be dismissed.
3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 9 January 2018 (Court Book (‘CB’) 331). In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on around 13-17 August 2012 as an unauthorised maritime arrival (CB 264).
On 10 October 2012, the Applicant participated in an Irregular Maritime Arrival interview (‘Arrival Interview’)(CB 16).
On 5 August 2013, the Applicant made an application for a protection visa (‘2013 visa application’) with the support of Vrachnas Lawyers. The application was supported by a Statutory Declaration dated 22 July 2013 (‘2013 Statement’). The 2013 visa application was also accompanied by written submissions of the Applicant’s lawyers of 5 August 2013, a document dated 23 July 2012 (‘TMVP letter’), and a document dated 26 July 2012 from the Human Rights Commission of Sri Lanka.
The 2013 visa application was determined to be invalid (CB 120).
On 6 July 2016, the Applicant applied for the visa with the support of Playfair Visa and Migration Services (‘2016 visa application’) (CB 136). The 2016 visa application was supported by a statutory declaration of the Applicant dated 8 April 2016 (‘2016 Statement’).
On 8 December 2016, the Applicant attended a Protection Visa Interview (‘PV Interview’) (CB 210). Post-interview submissions were submitted by the Applicant's representative dated 4 January 2016 (though it would seem the date ought to be 4 January 2017 given the submissions post-date the interview) (‘2016 submissions’) (CB 233).
On 16 March 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 261).
On 23 March 2017, the decision of the delegate was referred to the Authority for a fast-track review of the delegate’s decision under Part 7AA of the Migration Act 1958 (Cth) (‘Act’) (CB 282).
On 13 April 2017, the Applicant’s former representative provided further written submissions to the Authority (‘2017 submissions’). Further, on 21 April 2017, the Applicant’s representatives provided the Authority with a report from the Applicant’s psychologist (CB 315).
On 9 January 2018, the Authority affirmed the decision not to grant the Applicant the visa and provided a written record of its reasons to the Applicant (‘Reasons’).
The Applicant filed his Application in this Court on 29 January 2018. At the time he filed his Application, he also filed a supporting affidavit.
THE APPLICANT’S CLAIMS
A critical finding of the Authority was that the Applicant was not a credible witness: Reasons at [26], [29]. The Authority stated that the Applicant was ‘clearly prepared to exaggerate, embellish and fabricate aspects of his evidence in order to boost his claims for protection’; Reasons at [26]. Given the assessment by the Authority of the Applicant’s evidence, it is necessary to set out in some detail the Applicant’s claims, and the way in which they emerged over time.
In his Arrival Interview, the Applicant indicated that:
(a)he had an address in Matmunaitheevu between 1993 and 2007;
(b)between 2007 until 27 July 2012, he had an address in Batticaloa;
(c)the LTTE ‘beat me up in November 2006’ (I refer to this and the way it emerges in later statements or submissions as the ‘2006 Incident’);
(d)in June 2011, ‘a friend borrowed my phone and made a call. I don’t know who he spoke to but the next day the army came and looked for me. They removed my clothes and beat me badly’ (I refer to this and the way it emerges in later statements or submissions as the ‘2011 Incident’);
(e)when working at his father’s shop on 22 July 2012, ‘an armed group came up and I was taken by them. They asked for ransom and I was released after two hours’ (I refer to this and the way it emerges in later statements or submissions as the ‘2012 Incident’);
(f)aside from the above, there were no other reasons why he left Sri Lanka; and
(g)in response to the question ‘what do you think will happen to you if you return to your country of nationality’, the Applicant stated that ‘I can’t live after that’ and ‘Because they were asking ransom and they took me. Then they let me go after two hours. They didn’t know I was going to Australia and they will be really angry. If I go back they will take me away’.
In his 2013 Statement, the Applicant relevantly stated that:
(a)he worked in his father’s jewellery shop in Batticaloa for around four years before he left Sri Lanka;
(b)(of the 2006 Incident) at the end of 2006, the LTTE had beaten him up and his family then moved to Batticaloa. Every time he went back to Matmunaitheevu, he would be harassed and questioned by local Sinhalese and the Police, and he did not experience that problem in Batticaloa;
(c)(of the 2011 Incident) in 2011 when he went back to Matmunaitheeva he allowed a friend to use a mobile phone. The next day, the army came and started to hit him. An officer [K] said he had contacted a girl and he was angry at the Applicant because the father of the girl had complained to him. He said he was so shaken by this that his father sent him, his mother and siblings to Jaffna for a few months. People were talking about him, saying his family had links to the LTTE, and local people were suspicious of why he had moved. Because of these problems, he ended up having to leave Jaffna as well; and
(d)(of the 2012 Incident) in 2012, he received a call from the TMVP. They demanded money from him and his father because they [TMVP] thought he and his father were rich because they were running a business and they asked to meet. He and his father did not go to the meeting. Then, on 22 July 2012, the Applicant claims he was abducted when he went to the shop. He claimed three men in a van came and abducted him. They took his phone and called his father. They kept him for two hours and then let him go. He went back to the shop and his father told him they had demanded money which he had agreed to pay. Following a further demand from the TMVP and his father complaining to the Human Rights Commission of Sri Lanka, his father arranged for him to flee the country. His father had to close the shop because of continuing threats to him.
In his 2016 Statement, the Applicant stated that:
(a)(of the 2006 Incident) one evening in November 2006, the LTTE came and captured him as he went to buy pain relief for his mother. A member of the LTTE beat him. He was taken to a house and detained there overnight. His parents negotiated his release the following day. Then, the following evening, more LTTE members returned to his house and he was harassed and beaten. When his mother intervened to protect him, she was kicked by the LTTE officers. He managed to escape. His mother and younger brother were detained. The following day his younger brother was released due to his age but his mother remained in detention. She was subjected to mistreatment and physical harassment by the LTTE and they forced her to sign a document agreeing to send a boy from the family to join the LTTE. The following day his father returned from the town and hid him and his brother. His father then tried to negotiate the release of the Applicant’s mother and it was only when his father agreed to send a son to join the LTTE were his parents reunited;
(b)following the incident above, his father moved them to a new address in Batticaloa;
(c)(of the 2011 Incident) in 2011, his family returned to ‘Munaitheevu’ for a religious celebration. One of his friends wanted to have a look at his iPhone so he let him play with it, and his friend made some calls with it, including to abuse one of his relatives. The police then came to the temple during worship and one of the policeman [K] removed his clothes and used it to tie his hands behind his back. The Applicant was humiliated and forced to stand there in front of the temple in nothing but his underwear and he was then beaten. He was then thrown into the back of a jeep and driven to the local police station where he suffered serious beatings. His parents went to the police station and he was eventually released;
(d)after his arrest and humiliation in front of his family at the temple, he suffered a lot of humiliation as a result. Many in the community, including his own relatives, suspected that he was guilty of a serious crime. The Applicant claimed that everyone accused him of being guilty of a crime. He says he considered drinking acid to kill himself but his father stopped him. He says at this time, for his safety and wellbeing, the entire family was sent to Jaffna, however his father remained in Batticaloa to work;
(e)after two or three months, military personnel began to visit the Applicant’s home in Jaffna. The army wanted to talk to his sisters and suspected the family to have potential LTTE associations;
(f)because of harassment directed towards his sisters, the family was forced to move again and returned to Batticaloa in March 2012. The Applicant and his family were able to make enough money through his father’s shop, and the business was doing well since his father’s brother had sold his business to them as well in May 2012;
(g)(of the 2012 Incident) on 20 July 2012, he received a call at the shop. The caller wanted to speak to his father in person and his father refused. On 21 July 2012, they phoned again and demanded money. His father refused again. On 22 July 2012, his father came to open the shop and he went to collect flowers. While walking, a white van stopped next to him and asked him where the government hospital was. He agreed to show them directions however they took him by force to a TMVP office. He was released from detention after two hours. The following day he received a letter from the TMVP ordering him to return to the office for interrogations but he did not go because he was too afraid. He was afraid of extortion and other harm and his family was afraid that he was being targeted as the son of a successful Tamil businessman; and
(h)on 26 July 2012, his father made a complaint to the Human Rights Commission of Sri Lanka. On 27 July 2012, his father arranged his departure from Sri Lanka.
During his PV Interview, the Applicant:
(a)when asked about the 2006 Incident, stated he went to the shop one day and the LTTE got him, however, when a lady in the shop asked the LTTE to let him go they did, but as soon as he left the shop with the lady, the LTTE took him and beat him before releasing him the next day. He further stated that his mother was released after his father signed a written agreement to provide a family member to the LTTE;
(b)when asked about the 2011 Incident, the Applicant said his friend called a relative to scold him;
(c)when asked how the family managed to keep his sisters from the army, the Applicant stated that ‘the family all screamed very loudly and the SLA officers left them’. When the delegate expressed doubt about this, the Applicant said it was because the SLA gave them a day to report and then they were regularly coming to check on the family;
(d)in relation to the 2012 Incident, said that one day his father had received a call and was asked for a bribe and his father thought it was people mucking around so he scolded them and put the phone down. Then one day, he was abducted while picking flowers when men in a white van asked for directions. Since he left Sri Lanka, his father has been threatened by the TMVP; and
(e)when asked why the TMVP would wait until he was back before doing anything to his father, the Applicant said because the shop and other assets were in his name.
THE DECISION OF THE AUTHORITY
The Authority in its Reasons:
(a)set out the information before it including whether it should consider and take account of new information at [2]-[10];
(b)set out the Applicant’s claims at [11];
(c)summarised the problems the Applicant experienced in Sri Lanka at paragraphs [13]-[15], and noted there were a number of discrepancies in relation to incidents that the Applicant claimed occurred in 2006, 2011 and 2012;
(d)considered the 2006 Incident at paragraphs [16]-[17] and noted that the Applicant’s failure to mention particular matters prior to 2016 were ‘significant omissions’. The Authority also expressed views that aspects of the Applicant’s evidence were not credible;
(e)considered the 2011 Incident at paragraphs [18]-[20] and noted ‘substantial changes’ in his evidence (at [18]); while also expressing concerns about the plausibility and credibility of the Applicant’s evidence given, among other things, the inconsistencies in it (at [20]);
(f)considered the 2012 Incident at paragraphs [21]-[22] and noted that surrounding details of the Applicant’s claims in relation to his abduction have changed and evolved over time and that aspects of his evidence were not credible;
(g)identified other discrepancies in the Applicant’s evidence at [23]-[24] including inconsistencies and omissions;
(h)assessed the Applicant’s claims at [25]-[29]. The Authority was expressly mindful of the difficulties of recall over time, the scope for misunderstanding in interpreted material, cross-cultural communication issues, and the problems of a person who suffered trauma in providing a cohesive narrative at [25]. Notwithstanding that, the Authority stated that given the not-insignificant inconsistencies, changes, implausibility and credibility issues with the Applicant’s evidence as well as other matters, it did not find him to be a credible witness. Additionally, the Authority stated that he was ‘clearly prepared to exaggerate, embellish and fabricate aspects of his evidence in order to boost his claims for protection’. The Authority rejected his claims in relation to the 2006 Incident, rejected his claims in relation to the 2011 Incident, and rejected his claims in relation to the 2012 Incident. Other claims too were rejected (at [27]);
(i)considered the Applicant’s mental health issues at paragraphs [30]-[31] and accepted that the Applicant had symptoms of anxiety and feelings of shame at [31], but did not accept that the Applicant was vulnerable on the basis of his previous suicide attempts;
(j)found that if the Applicant were to return to Sri Lanka, he would be considered a failed asylum seeker who departed illegally and that he has sought asylum in a Western country at [32];
(k)assessed the Applicant’s claims to fear persecution as a young Tamil male from the North and the East, because of his mental health issues, due to any links to the LTTE and for any imputed political opinion at [35]-[52], considered available Country Information, and ultimately found that the Applicant would not face a real chance of persecution if returned to Sri Lanka now or in the reasonably foreseeable future;
(l)assessed the Applicant’s claims to fear harm on return to Sri Lanka as a result of being a failed asylum seeker who departed Sri Lanka illegally at [53]-[70]. The Authority accepted that the Applicant would be identified as an asylum seeker on return, but did not accept that he would be at risk of adverse attention from Sri Lankan authorities when scrutinised on return to Sri Lanka at [59], [62]. Further, the Authority was not satisfied the Applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future at [69], and concluded that he did not meet the definition of a refugee at [71];
(m)assessed whether the Applicant was at risk of significant harm under section 36(2A) of the Act at [72]-[80]. The Authority concluded there was not a real chance of harm to the Applicant now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinion, as a young Tamil male from the North and the East, as a returned Tamil failed asylum seeker from Australia, or a combination of these at [75];
(n)concluded that it was not satisfied that the Applicant would face a real risk of significant harm during any processing at the airport, from any brief period of detention, or any bail surety or fine imposed at [77];
(o)stated it was not satisfied that there was a real risk that the Applicant will suffer significant harm (at [78], [79]) before concluding that the Applicant did not satisfy the complementary protection criteria; and
(p)ultimately affirmed the decision not to grant the Applicant the visa.
THE APPLICATION
Ground 1
The first Ground of Review in the Application is:
1.The Second Respondent (“the Authority”)
erred in lawfell into jurisdictional error by making a decision not taking into account or considering with the engagement required by law relevant considerations including claims, integers of claims or material questions of fact or information.PARTICULARS
Whether the Applicant’s family and sister were suspected of involvement with the LTTE
(a)The Authority did not consider as required by law the Applicant’s explicit claim and submissions that his sister and his family were suspected of some involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), and whether this may cause the Applicant to have a real chance of suffering relevant harm in the reasonably foreseeable future. (Amended Court Book (“CB”) 81, [12]; 189, [24]; 240-243).
Whether the Applicant’s family were able to deter the Sri Lankan Army from arresting the applicant’s sister
(b)The Authority did not consider as required by law the Applicant’s explicit claim possibility of the that the Applicant’s “family were able to deter the Sri Lankan Army from arresting the applicant’s sister on this occasion after they yelled and made a scene drawing the attention of the neighbourhood.” (CB 243-244; cf. CB 337, [19]-[20])
Whether the Applicant might suffer relevant harm by being targeted for extortion
(c)The Authority did not consider the question, squarely raised on the material, whether the Applicant might suffer relevant harm in the reasonably foreseeable future by being targeted for extortion as the son of a successful businessman or as a successful businessman himself. (CB 189-90, [27]; CB 269)
Whether the Applicant may suffer serious or significant harm during possible detention
(d)The Authority did not consider as required by law the question whether the Applicant may suffer serious or significant harm during possible detention or prison on return as an illegal emigrant, when this was a question squarely raised on the material before the Authority and its own findings that the Applicant may spend some time in detention. (CB 247-259; CB 344-351)
I now consider each of the particulars to this Ground of Review.
Ground 1(a)
In the 2013 Statement, the Applicant stated:
12.I was so shaken and anxious after my experience with the Army. My father sent me, my mother and siblings to Jaffna for some months. People there were talking about me and my family and saying that we had some link to the LTTE. The local people were suspicious of why we had moved and were guessing that the reason was because we had problems because of the LTTE. This also caused us to have problems with the Army there. They would come to our home and ask why we were there in Jaffna. Because of these problems. we ended up having to leave Jaffna as well.
In the 2016 Statement, the Applicant stated:
24.After two or three months, military personnel began to visit our house. The area in Jaffna was Army-controlled and we had been displaced for a long time. People were quite suspicious of us, as newcomers. The Army wanted to talk to my sisters, initially, suspecting us as a family to potentially have LTTE associations. They were very young. I felt bad because the only reason that we were in Jaffna was because of me. I didn't want my sisters to suffer, and be harassed by the Army, just because of me. My elder sister, Karthika, can speak Sinhalese. She was the one who had to speak to the Army on our behalf. Because of this, she was targeted for interrogation by the Army. On one occasion, the Army were trying to take her forcefully to the Camp for interrogation. They slapped her, and after we all went to her side to protect her the Army finally left.
Furthermore, in the 2016 submissions, the Applicant submitted that he may be perceived by the authorities to be anti-Sri Lankan government, a person linked to the LTTE, or a supporter of the LTTE for reasons that include his sister being a suspected LTTE cadre (CB 240); that his family had suspected links to the LTTE (CB 241), and that his sister had a suspected LTTE profile with the authorities (CB 242).
There is little doubt that the claim identified by the Applicant was made, and that the Authority recognised it as a separate claim: see, for example, paragraph [11] of the Reasons as well as paragraph [19]. The Applicant’s critical submission, however, is that there is no clear finding about his claim to have been suspected, or the family or his sister to have been suspected of an LTTE connection. In order to assess this submission, it is necessary to have close regard to the Reasons.
In assessing the Applicant’s claims, the Authority meticulously assessed the evidence given by the Applicant, including the evidence and submissions given by him in 2013, 2016 and 2017. It set out that evidence carefully and identified what it regarded as inconsistencies or omissions within that evidence at [13]-[29] of the Reasons. The Authority having set out and reviewed the evidence, had ‘serious concerns about the credibility of the applicant and the veracity of his protection claims’ (Reasons at [13]). Specifically in relation to the 2011 Incident, the Authority noted at [19] of the Reasons, the claim that the authorities were suspicious of the family’s potential LTTE associations. The Authority then at [20] of the Reasons noted the implausibilities in the Applicant’s evidence and concluded that ‘the other inconsistencies and changes in the applicant’s evidence in relation to the events of and after the 2011 Incident are, in combination, sufficiently significant to call his credibility to question’. The Authority then at [50] of the Reasons concluded that the Applicant ‘does not have a profile that country information suggests he is at risk of harm now or in the foreseeable future, for any real or perceived LTTE links’.
The approach that the Authority took is plain from its reasons. It understood the Applicant advanced the claim identified by the Applicant under this ground. It rejected that claim (among others), however, because of the inconsistencies, omissions and implausibilities in the Applicant’s evidence. It then reached a conclusion that the Applicant was not at risk of harm because of any real or perceived LTTE links, which in my view must be read as including links arising from his sister or his family. In short, the Authority did not accept past events as alleged by the Applicant occurred. It is well understood that the reasons of the Authority are not to be read with an eye finely attuned to error, and that it is not required to refer to every submission or piece of evidence before it.
For the above reasons, Ground 1(a) ought to be dismissed.
Ground 1(b)
In the 2016 submissions, the Applicant advanced the following claim:
[the applicant]’s family were able to deter the Sri Lankan Army from arresting the applicant’s sister on this occasion after they yelled and made a scene drawing the attention of the neighbourhood. We refute the delegate’s suggestions that such circumstances are “a little fanciful”…
The Applicant also stated as follows in the 2016 submissions:
Nevertheless, to find “fanciful” the applicant’s representation that that Army retreated from their unlawful arrest and harassment of his sister due to being observed by the public is flawed.
The Applicant contends that there are three aspects to the claim that was advanced above. The first is that there was resistance by family members to the attempts by the Army to arrest his sister. The second aspect is that members of the public observed what occurred. The third aspect was the Applicant’s claim before the delegate that one reason for the army leaving was because they ‘gave them a day to report’. The Applicant submits there is no consideration by the Authority of these matters. It was submitted the Authority needed to consider this claim, because throughout the reasons of the Authority, it draws a distinction between those who had an adverse profile with the Sri Lankan authorities, and those who did not.
The Authority was clearly aware that this claim was advanced. At [19] of the Reasons, the Authority referenced the 2016 submission and recorded that ‘on one occasion the SLA tried to take her by force to their camp, they slapped her and the SLA left after the family all went to her side to protect her’. Then, later on in [19] of the Reasons, the Authority referenced the PV Interview in the following manner:
19.[the Applicant] said that when the SLA officers came to take his sister away there were four or five SLA officers; he was there with his eldest sister, another sister, his brother and his mother; that the SLA officers slapped his eldest sister and pulled her by the hand, the family all screamed very loudly and the SLA officers left them; and when the delegate expressed doubt about the SLA leaving his sister because the family screamed, said for the first time that the SLA left them because they gave them a day to report and were then coming regularly to check why they weren’t reporting.
The Authority then proceeded to deal with the claim in [20] of its Reasons. It stated “I do not consider it plausible that the applicant, his siblings and his mother would, by screaming or otherwise, have been able to prevent four or five SLA officers from taking away his eldest sister.”. It also referenced inconsistencies and changes in the Applicant’s evidence with respect to the 2011 Incident, and considered that those inconsistencies and changes are ‘in combination, sufficiently significant to also call his credibility into question’.
It is not clear on the submissions of the Applicant as to whether it is also contended that the Authority was not familiar with, or disregarded the 2016 submissions. If that is the claim made, it cannot be accepted. The Authority plainly referred to matters in the 2016 submissions which I have extracted above. It also demonstrated a familiarity with the 2016 submissions in paragraphs [10]-[11], [13], [25] and [32] of the Reasons.
In my view, when the Reasons are read as whole, the Authority plainly considered the Applicant’s claim and rejected it.
For these reasons, Ground 1(b) of the Grounds of Review must fail.
Ground 1(c)
In his Arrival Interview, in response to the question ‘what do you think will happen to you if you return to your country of nationality (residence)?’, the Applicant’s response is recorded as follows:
I can't live after that.
What do you mean?
Because they were asking ransom and they took me. Then they let me go after two hours. They didn't know I was going to Australia and they will be really angry. If I go back they will take me away.
In the 2016 Statement, the Applicant stated as follows at [27]:
The following day, 23rd July 2012, I received a letter from the TMVP, ordering me to return to the office for interrogations, or "enquiries" the following day. I did not go because I was too afraid. We were afraid of extortion and other harm. My family was afraid that I was being targeted as the son of a successful Tamil businessman (emphasis added).
Furthermore in the 2017 submissions, under the heading ‘Targeted for Extortion’, the following submission was put:
Again this claims [sic] is largely consistent with known country information, we submit that the threat faced by our client from criminal gangs who wish to target his family will pose a risk of kidnapping for reasons of extortion should he be returned due to his families fortunate economic position.
It is plain that the Applicant claimed to fear harm from extortion. However, no claim was advanced that the Applicant claimed to fear harm from extortion because he himself was a successful businessman. The notion that he himself was a successful businessman would appear to have its genesis during the PV Interview. The Applicant did not claim there that he was a successful businessman. Rather, the Applicant claimed to own a business only in response to a question from the delegate as to why his father had not been harmed since the Applicant’s departure. It is apparent from the reasons of the delegate (CB 269) that the delegate was sceptical about the Applicant’s statement that he owned the business. Notwithstanding that, and notwithstanding that the Applicant was represented at the time, he never once (including in his 2016 submissions (CB 233)) clarified or pressed any claim that he feared harm because he was a successful businessman on his own account. Nor can any such claim now contended for by the Applicant be said to arise squarely from the material.
The Applicant did claim to fear harm from extortion in the future on the basis that he was the son of a successful businessman, or because of his family’s success in business. That claim arose as part of the 2012 Incident. The Authority considered that claim about the 2012 Incident and rejected it on the basis that the Applicant’s account of what occurred was not credible: Reasons at [22], [27]. It is important to note that the Applicant did not otherwise claim to fear extortion, and provided no other examples of extortion attempts because he was the son of a successful businessman. His claims about extortion arose only in the context of the 2012 Incident, and the Authority then rejected these claims. Having not accepted the 2012 Incident occurred, the Authority was not required to consider any unarticulated claim that the Applicant feared harm as the son of a successful businessman on some other unarticulated basis.
For these reasons, this Ground of Review must be dismissed.
Ground 1(d)
Under this Ground of Review, the Applicant:
(a)contends that the Authority did not consider whether he may suffer harm during possible detention or prison on return to Sri Lanka as an illegal immigrant when this question squarely arose from the material;
(b)contends the Authority had a ‘great volume of information’ before it relating to the prevalence of the culture of torture and abuse in Sri Lanka. The Applicant concedes the Authority did consider much of this information, but it did so on the basis that it had rejected the Applicant’s claims about the 2006 Incident, the 2011 Incident and the 2012 Incident;
(c)contends the Authority did not consider whether the information before it gave rise to a real chance of harm simply because the Applicant might be detained; and
(d)says that while the Authority relied on the ‘DFAT Country Information Report Sri Lanka’ dated 24 January 2017 (‘DFAT Report’), it did not consider or engage with paragraphs 4.12 to 4.22 of that report which referred to credible reports of torture that might be practised all over the country in a routine way.
I have summarised earlier the reasons of the Authority. From paragraphs [53] to [70], the Authority considered the risk to the Applicant of returning to Sri Lanka as a failed asylum seeker following his illegal departure. A number of observations may be made about the Reasons at [53]-[70]. They include the following:
(a)the Authority referred extensively to the DFAT Report;
(b)the Authority referred extensively to other Country Information before it —see for example the numerous references at footnote 45 of the Reasons;
(c)the Authority did not accept that the Applicant had a profile that would place him at risk of harm, including if he were returned to Sri Lanka: Reasons at [50]; and
(d)the Authority accepted that the Applicant would be considered by the authorities in Sri Lanka to be a failed asylum seeker who departed Sri Lanka illegally: Reasons at [53]. It then considered legislation in Sri Lanka at [54], the processing of involuntary returnees at [55], returnees travelling on temporary travel documents at [56], the possibility that returnees may be charged and arrested at [57], and the imposition of fines to persons who departed illegally at [58].
The finding at paragraph [59] of the Reasons is particularly nuanced. The Authority cites the DFAT Report on the risk of mistreatment or torture of returnees to be ‘low’, but then acknowledges that Country Information ‘contains reports of some returnees being tortured. DFAT does not suggest that there is no risk and those other reports provide some examples of incidents of mistreatment’.
Then, at [61], the Authority concludes that it is not satisfied that the Applicant’s profile is one that places him at risk on return.
Paragraph [62] of the Reasons is also critical. There, the Authority states its view that it is ‘not satisfied that there is a real chance that the applicant would face harm on his return as a failed Tamil asylum seeker from Australia’ but acknowledges that the Applicant may face action under the Immigrants and Emigrants Act 1949 (Sri Lanka) (‘IE and EA Act’) which may include being detained and questioned at the airport ‘possibly up to 24 hours’. The Authority then considers the prospect of the Applicant being questioned at the airport, when he might be placed before a magistrate, what penalties he may face, the duration of his detention and whether the terms of the IE and EA Act are discriminatory. The Authority then squarely concludes at [69] that ‘it is not satisfied that the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future’.
In my view, this Ground of Review is not made out and must be dismissed. As can be seen from the above, the Authority squarely considered whether the Applicant may suffer serious or significant harm during possible detention or prison on return to Sri Lanka as an illegal immigrant. It did so separately from any consideration of whether the Applicant might face such harm because he did not have an adverse profile. The Applicant’s complaints that particular material was not considered by the Authority does not advance his claim. The DFAT Report was considered. The findings of the Authority were nuanced and recognised the risks that might arise. The Authority was entitled to place such weight on the sources of Country Information that it considered appropriate: EGY18 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [53].
For these reasons, Ground 1(d) must be dismissed.
Ground 2
This Ground of Review was not pressed.
Ground 3
The third Ground of Review in the Application is:
3.The Authority fell into jurisdictional error in that it made findings without a logically probative basis or was otherwise legally unreasonable.
PARTICULARS
Rejection of claims about 2006
(a)The Authority was legally unreasonable to reject the Applicant’s claims about the incidents in 2006 arising from the attempts by the LTTE to recruit the Applicant. (CB 335-336, [16]-[17]; CB 339-340, [26]-[27])
Rejection of claims about 2011
(b)The Authority was legally unreasonable to reject the Applicant’s claims about the incidents in 2011 arising from the use of his mobile telephone by a friend, including his humiliation, detention, beating and leading to two attempts to kill himself. (CB 335-336, [16]-[17]; CB 339-340, [26]-27])
Rejection of claims about 2012
(c)The Authority was legally unreasonable to reject the Applicant’s claims about the incidents in 2012 arising from his abduction and the attempted extortion of money. (CB 337-340, [21]-[22], [26]-[27])
Rejection of credibility
(d)The Authority was legally unreasonable to reject the credibility of the Applicant and to find “He is clearly prepared to exaggerate, embellish and fabricate aspects of his evidence in order to boost his claims for protection.” (CB 339, [26]; and see CB 340, [29])
Findings about “significant omissions”
(e)The Authority was legally unreasonable to regard the following as “significant omissions” damaging to the applicant’s credibility:
(i)“The applicant’s failure to mention prior to his 2016 written statement that he attempted suicide on two occasions…” (CB 3…37, [20])
(ii)“The applicant’s failure to mention he was beaten by the smugglers prior to his 2016 written statement…” (CB 339, [24])
(iii)“Similarly, his failure to mention prior to the SHEV interview that the shop and assets were in his name is both a significant omission and clearly contrary to his previous evidence about the shop.” (CB 339, [24])
Rejection of applicant being vulnerable
(f)Having accepted that the Applicant had twice attempted to kill himself, the Authority was legally unreasonable to find “In the absence of other evidence to support the representative’s submission, I do not accept that the applicant is vulnerable on that basis of his previous suicide attempts in 2011 in Sri Lanka.” (CB 240-241, [29]-[31])
Not finding a real chance of harm in detention
(g)The Authority was legally unreasonable not to find that the Applicant would have a real chance of suffering relevant harm in detention on return to Sri Lanka on the basis of any or all of the following factors:
(i)The Applicant’s claim, not considered by the Authority, that his sister and family were suspected of some involvement with the LTTE. (CB 81, [12]; 189, [24]; 240-243).
(ii)the material before the Authority including the 24 January 2017 report on Sri Lanka by the Department of Foreign Affairs and Trade;
(iii)the Applicant having been found to have twice attempted to kill himself. (CB 240-241, [29]-[31]).
I now turn to consider each of the particulars to this Ground of Review.
Ground 3(a)
The Authority rejected the Applicant’s claims about the 2006 Incident: see Reasons at [17], together with [26]-[27]. At [17], the Authority stated:
17.The applicant’s failure to mention prior to his 2016 written statement that the LTTE tried to forcibly recruit him, that other members of his family were also detained by the LTTE because of their interest in the applicant and, in particular, that his mother was held for several days and subjected to physical mistreatment by the LTTE are significant omissions. Country information indicates that there was extensive recruitment of children by the LTTE, with estimates that up to 60 per cent of the LTTE’s fighters were below 18 and two studies of casualty figures estimated 40 per cent of LTTE fighters were between 9 and 18 years of age and at least 60 per cent of dead LTTE fighters were under 18 and mostly aged between 10 and 16. Based on that country information, I do not consider the applicant’s claim that his brother was released because, at around 14 years of age, he was too young for the LTTE to be credible. Additionally, I do not consider the applicant’s sequence of events in relation to the LTTE trying to forcibly recruit him under their one person per family policy, as set out in the 2016 written statement and SHEV interview, to be credible. That is, it is not credible that the LTTE would capture him twice on the same day only to release him twice, once because a shop lady told them to and the second time after negotiations with his parents; that the next evening they would attempt to capture him a third time but he happened to escape out the back door; that they would initially detain his mother and younger brother after his escape, then release his brother despite the LTTE’s desire to have a member of the family as a recruit; or, after taking or attempting to capture the applicant three times, that the LTTE would simply release his mother after she and his father promised in writing to provide a family member to the LTTE.
[footnotes omitted]
In respect of the paragraph above, it is important to record that the Applicant had mentioned the 2006 Incident prior to completing the 2016 Statement. For example, he referred to the LTTE having beaten him up in his Arrival Interview, and he referred to their assault on him in 2006 again in his 2013 Statement. What was missing, however, from those earlier statements were the details that the Authority refers to in the first sentence of paragraph [17] of the Reasons. It is clear that the Applicant’s failure to mention those details prior to 2016 was a matter that the Authority took into account in deciding whether to accept the Applicant’s evidence as to what occurred in 2006. On this issue, there is nothing unreasonable about the Authority taking into account the Applicant’s failure to provide details that he had an opportunity to provide earlier when assessing whether his claims about the 2006 Incident should be accepted.
Significantly, as paragraph [17] discloses, there were other reasons that the Authority had for rejecting the Applicant’s claims about the 2006 Incident. Among other things, the Authority:
(a)considered the Country Information it had before it regarding recruitment of children by the LTTE and having regard to that information, considered the Applicant’s claim that his brother was released because he was too young (14 years of age) not to be credible. There is nothing unreasonable about the Authority having regard to the Country Information in the manner that it did;
(b)considered it was not credible that the LTTE would capture him twice on the same day only to release him twice (once because a shop lady told them and the second time after negotiations with his parents). There is nothing illogical about the Authority reasoning in this manner; and
(c)considered it was not credible that the LTTE would detain his mother and younger brother after his escape, but then release his younger brother despite their desire to have a member of the family as a recruit, and further that after three attempts to capture the applicant, they would release the Applicant’s mother in exchange for a written undertaking from his father to provide a son to the LTTE.
The Applicant submitted the assessment of his credibility by the Authority was based on assumptions by the Authority that the LTTE would have acted with ‘intelligent consistency’ as viewed by the Authority over 10 years later. I do not accept that submission. For the reasons I have given above, there is nothing illogical or unreasonable about the reasoning of the Authority, or the conclusion ultimately reached in relation to the Applicant’s credibility insofar as it concerned the 2006 incident. The Authority is entitled to take account that a particular version of events does not accord with the ‘probabilities of ordinary human experience’: Republic of Nauru v WET040 (No 2) (2018) 93 ALJR 102 (‘Republic of Nauru’) at [35].
For these reasons, Ground 3(a) must be dismissed.
Ground 3(b)
The Authority rejected the Applicant’s claims about the 2011 Incident: see Reasons at [18] – [20]. The Reasons reveal the Authority rejected the Applicant’s claims because, inter alia:
(a)there were substantial changes in his evidence over the course of his Arrival Interview, the 2013 Statement, the 2016 Statement and the PV Interview that reflected poorly on his credibility: Reasons at [18];
(b)he provided inconsistent evidence as to which of the Sri Lankan authorities had attacked him. In his Arrival Interview and his 2013 Statement he had identified the SLA. In his 2016 Statement, he had identified the police: Reasons at [19]; and
(c)he provided inconsistent evidence about who his friend had telephoned: Reasons at [18].
The Authority in considering this aspect of the Applicant’s claim also noted that the Applicant made ‘no mention of moving to Jaffna’ in his Arrival Interview (Reasons at [19]) and that during the arrival interview he had given a ‘detailed address history’. The Authority further noted that the failure by the Applicant to mention prior to the 2016 Statement that he attempted suicide on two occasions ‘is a significant omission’.
The Applicant submits that the reasoning of the Authority is unreasonable in circumstances where, inter-alia:
(a)it was not surprising that at the time of the Arrival Interview, he may not have known who his friend had telephoned. Further, this evidence was not contradicted by the officer who arrested him telling him that the contact had been with a ‘girl’, nor was the statement necessarily inconsistent or contradicted by later evidence given by the Applicant that his friend had called one of his relatives;
(b)the inconsistencies focused on by the Authority were based upon things the Applicant had not said at the Arrival Interview, but that was necessarily a short interview and not a ‘detailed exploration’ of his claims;
(c)while the Applicant had given inconsistent evidence as to whether the Army or Police had detained him, his evidence as to who administered the beating to him was the same and critically, it was a person that belonged to one of the Sri Lankan authorities; and
(d)in the context of the Arrival Interview, there is an ambiguity between an ‘address’ and where one might be actually living, including any temporary domicile such as where when the Applicant was residing in Jaffna. The question in the Arrival Interview was not as precise as the question posed in the 2016 visa application .
I do not accept the submission that any of the matters referred to above disclose any unreasonableness or illogicality on the part of the Authority. The Applicant’s later evidence was not the same as what he had given in his Arrival Interview, and his evidence as to whether the Army or the Police had beaten him in 2011 had changed. I do not accept there is any ambiguity about what the Applicant’s address might have been, particularly when the Applicant was asked at the Arrival Interview for ‘Previous Addresses. Include all addresses during the past twenty years’.
In respect of the other matters raised by the Applicant (who the friend called on the Applicant’s phone), simply because there may be an explanation for the evidence given by the Applicant does not result in the reasoning of the Authority being illogical. The Authority plainly in its reasons identified a number of issues with the Applicant’s evidence in relation to the 2011 Incident, including with respect to the phone call, and the identity of the person to whom the phone call was made.
For all of the reasons above, Ground 3(b) must be dismissed.
Ground 3(c)
The Authority states as follows at [21] and [22] of the Reasons:
21.He has variously claimed that armed men came into the shop and took him away (arrival interview); he went to the shop and was abducted when three men came in a van and took him away (2013 statement); his father was downstairs in the shop when the applicant went to collect flowers, as part of his daily worship before work, and while walking a white van stopped next to him and asked for directions to the hospital and as it was only ten minutes away he agreed to show them the directions and got into the van (2016 written statement); and one day they were picking flowers for the temple when a white van came and asked for an address and as he knew the exact address the men in the van asked him to come and show them so he got in the van with them (SHEV interview). He has various said that the armed men came into the shop on 22 July 2012, asked for a ransom and took him when they couldn’t pay (arrival interview); he received a call from the TMVP on 16 July 2012 asking his father to meet them and give them money, he and his father didn’t take the call seriously, they didn’t meet the TMVP and told them the TMVP they would complain to the police, on 22 July he was abducted and after his release when he got back to the shop his father told him they had demanded money which his father agreed to pay (2013 statement); that on 20 July 2012 he received a call at the shop asking to speak to his father but his father refused, on 21 July 2012 they phoned again and demanded money and his father refused, he was abducted the next day and they took his phone to call his father but he didn’t hear the rest of the conversation (2016 written statement); and one day his father received a call, was asked for a bribe, his father thought it was people mucking around so he scolded them and put the phone down, and since he left Sri Lanka his father has been threatened by the TMVP saying he promised to give them money and it was for that reason they spared the applicant (SHEV interview).
22.The surrounding details of the applicant’s claims in relation to his 22 July 2012 abduction have changed and evolved over time including whether he was taken from the shop or entered a van while out picking flowers; what contact was made with him and his father prior to the abduction; whether his father agreed to pay the men money for his release; and what contact the men made with his family after he left. I do not consider it credible that the applicant, within either a few days or one day of men demanding money from his father over the phone, would choose to enter a van and accompany strangers who stopped and asked for directions. I do not consider it credible that the TMVP would, after abducting the applicant, expect him to obey a written demand that he attend a meeting or, as they wanted to obtain money from his father, demand that the applicant rather than his father attend the meeting. Additionally, as the TMVP letter also contains the stamp of the fisheries department (as translated at the SHEV interview), the applicant’s explanation as to why there was a fisheries department stamp on a TMVP letter was unconvincing, and as country information notes the prevalence of document fraud in Sri Lanka, I do not accept the TMVP letter is genuine.
[footnotes omitted]
The Applicant submits that the inconsistencies identified by the Authority at [21] were not necessarily inconsistencies, and that it is unreasonable to conclude that these inconsistencies (if they are inconsistencies) could support a finding that the Applicant fabricated or embellished his evidence.
I do not accept the submissions above that the reasoning of the Authority was unreasonable. It was open to the Authority to identify and set out the matters that it did at [21] and [22] of the Reasons. There is nothing unreasonable about it doing so. When the reasons are read as a whole, it can be seen that the Authority identified many concerns about inconsistencies in the Applicant’s evidence. The reasons must be read as a whole, and provide a context for the assessment by the Authority of the Applicant’s credibility.
The Applicant is also critical of the reasoning of the Authority in [22] where it noted that:
(a)it was not credible that within a few days of men demanding money from his father, the Applicant would choose to enter a van and the accompany strangers; and
(b)it was not credible the TMVP would, after abducting the Applicant, expect him to obey a written demand that he attend a meeting;
the Applicant’s criticism is that the Authority unreasonably assumed that the Applicant and the TMVP would act rationally.
I do not accept the submission above. It does not disclose unreasonableness. The Authority is entitled to consider that a particular version of events does not accord with the ‘probabilities of human experience’: Republic of Nauru.
For these reasons, this Ground of Review must be dismissed.
Ground 3(d)
The Applicant submitted that based on submissions he made in respect of particulars (a), (b) and (c) to Ground 3 above, the findings of the Authority at paragraph [26] and also [29] of the Reasons were legally unreasonable. For the reasons set out above, I have not accepted the Applicant’s submissions in respect to Grounds 3(a),(b) and (c). Given the findings I have made above, this Ground of Review also fails.
Ground 3(e)
The Applicant submitted that it was legally unreasonable for the Authority to find that the following matters were ‘significant omissions’ that damaged his credibility:
(a)the finding by the Authority at [20] of the Reasons of the Applicant’s ‘failure to mention prior to his 2016 written statement that he attempted suicide on two occasions’. The Applicant submitted this was not a matter it might be thought that he would readily disclose given its nature;
(b)the finding by the Authority at [24] of the Reasons of his ‘failure to mention he was beaten by the smugglers prior to his 2016 written statement’. The Applicant submitted that this was not a matter that was relevant to his fear of persecution, and it is unreasonable for the Authority to draw an adverse conclusion about credibility from the fact that a detail was mentioned later; and
(c)the finding by the Authority at [24] of the Reasons of his ‘failure to mention prior to the SHEV interview that the shop and assets were in his name’. The Applicant submitted that this evidence was not inconsistent, but simply an additional detail.
The Authority considered all of the evidence before it and assessed it. It was entitled to take into account matters that the Applicant failed to mention when it was assessing his credibility, and to attribute weight to those omitted matters, which it clearly did. It may have been that a differently constituted Authority might have reasoned differently to the manner in which the Authority reasoned in this case. That does not, however, render the reasoning of the Authority in this case as being unreasonable. This Ground of Review must be dismissed.
Ground 3(f)
At paragraph [31] of the Reasons, the Authority concluded that ‘in the absence of other evidence to support the representative’s submission, I do not accept that the applicant is vulnerable on that basis of his previous suicide attempts 2011 in Sri Lanka’.
The Applicant certainly made a claim about his mental vulnerabilities. In his 2017 submissions to the Authority, the Applicant submitted that ‘if returned, as a consequence of his actual and imputed political opinions, along with his memberships to particular social groups and specific mental vulnerabilities [he] would be at risk of serious and significant harm if returned to Sri Lanka’.
The Applicant’s mental health was the subject of a report prepared by Foundation House dated 8 May 2017 (CB 319 – 325). In that report, it is recorded that the Applicant attempted suicide twice: once by jumping down a well (CB 322), and once by attempting to consume poison (CB 323).
In the circumstances above, the Applicant takes issue with the conclusion of the Authority at [31] that he was not vulnerable on the basis of his previous suicide attempts. He submits that it is ‘manifestly unreasonable’ to find that anyone who tried to kill himself twice could be found to be anything other than vulnerable.
The Authority was plainly aware of the claims from the Applicant concerning his mental health and set out to address them. In particular:
(a)at paragraph [30] of the Reasons, the Authority:
(i)noted the letter and report from Foundation House including that the Applicant had received counselling and complementary therapies and that he was attending fortnightly counselling sessions;
(ii)noted that the Foundation House report ‘makes no diagnosis of the applicant suffering from a mental disorder or mental illness. The report states he was not currently taking medications’; and
(iii)noted that the Foundation House report indicates the Applicant’s psychological presentation included him experiencing fear and anxiety about his future, and provides details of the manifestation or symptoms of that anxiety;
(b)at paragraph [31] of the Reasons, the Authority:
(i)accepts the Applicant has symptoms of anxiety and that those symptoms affect various aspects of his life; and
(ii)notes the submission from the Applicant’s representative that the Applicant was vulnerable because of his previous suicide attempts, and states that ‘the report from Foundation House does not identify any such vulnerability and I note that the report does not mention that he has suffered any suicidal ideation or attempts at self-harm while in Australia’.
It can be seen from the above that the Authority carefully considered and evaluated the evidence before it at [30] and [31], including the report from Foundation House, in respect of the Applicant’s mental health. It ultimately concluded that the Applicant was not vulnerable on the basis of his previous suicide attempts in 2011 in Sri Lanka. The conclusion reached by the Authority was clearly open to it on the evidence. The reasoning of the Authority does not reveal any illogicality or irrationality.
In addition to the matters above, the Authority expressly considered the Applicant’s mental health when it considered whether he had a well-founded fear of persecution based on being a ‘young Tamil male from the north/east, mental health issues, LTTE links and imputed political opinion’ (Reasons at [35]-[52]). At paragraph [42] of the Reasons, the Authority noted information from DFAT that mental health services were scarce, and that there was a high prevalence of trauma related illnesses following the war. At paragraph [43], the Authority noted the report from Foundation House and accepted that the Applicant’s symptoms of anxiety would continue if he was returned to Sri Lanka. The Authority accepted from Country Information that the Applicant may, with his symptoms of anxiety, face societal discrimination if returned to Sri Lanka. The Authority concluded, however, that it was not satisfied the Applicant would face significant ill-treatment or any other type of harm that may be regarded as serious harm. Ultimately, the Authority concluded at [43] that it was ‘not satisfied that any difficulties or challenges the applicant may face in accessing medical treatment or services in relation to his symptoms would involve systemic and discriminatory conduct for one or more of the reasons mentioned in s5J(1)(a) of the Act’.
Finally, the Authority:
(a)at [66] of the Reasons when considering whether the detention of the Applicant on his return to Sri Lanka would constitute the necessary level of threat to his life or liberty, or to be significant physical harassment or ill-treatment under section 5J(5) of the Act, expressly considered his anxiety symptoms;
(b)at [74], while accepting that the Applicant may face some level of discrimination because of his symptoms of anxiety, was not satisfied on the evidence that any hurt he may suffer would amount to severe pain or suffering, and was not satisfied that the Applicant would face discriminatory treatment due to his symptoms, or difficulties in accessing scarce mental health resources, that amount to significant harm as defined in sections 36(2A) and 5 of the Act; and
(c)at [77], was not satisfied that the Applicant being ‘questioned, arrested, finger printed and photographed, any bail surety imposed, any fine imposed, and the poor prison conditions, including taking into account his anxiety symptoms, to which the applicant may be briefly subjected, of themselves or in combination constitute significant harm as defined under s.36(2A) of the Act’.
For all of the above reasons, this Ground of Review must be dismissed.
Ground 3(g)
Under this Ground of Review, the Authority is alleged to have acted unreasonably when it failed to find the Applicant would have a real chance of suffering relevant harm in detention on return to Sri Lanka. The Ground is built upon the subparticulars set out at (i) – (iii).
Subparticular (i) to this Ground is the alleged failure by the Authority to consider the Applicant’s claim that his sister and family was suspected of some involvement with the LTTE. I have already dealt with that issue in Ground 1(a). I rely upon my earlier reasons. There was no failure to consider that claim.
Subparticular (ii) relies upon matters that I have previously considered in relation to Ground 1(d). I rely upon my earlier reasons. The Authority did consider these matters for the reasons articulated previously.
Subparticular (iii) relies upon matters that I have previously considered in relation to Ground 3(f). I rely upon my earlier reasons. Further, how it can be said that a finding by the Authority that the Applicant attempted suicide twice means that its ultimate conclusion that he would not suffer serious or significant harm in detention is unreasonable is not explained.
For all of these reasons, Ground 3(g) must be dismissed.
DISPOSITION
For all of the above reasons, the Application must be dismissed. I will make the relevant order.
The Applicant has been entirely unsuccessful. The Minister seeks costs of $8,371.30 in accordance with the scale. In those circumstances, it is appropriate to make an order for costs in favour of the Minister in the amount sought.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 13 December 2024
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