AOV18 v Minister for Home Affairs

[2018] FCCA 1528

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOV18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1528

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority misconstrued s 473DD of the Migration Act 1958 (Cth) and failed to take into consideration the country information that post-dated the delegate’s decision – whether the adverse credibility findings made were open – no jurisdictional error identified – second amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Applicant: AOV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 318 of 2018

Judgment of: Judge Street

Hearing date: 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Sydney

Delivered on: 6 July 2018

REPRESENTATION

Counsel for the Applicant: Mr A Silva
On a direct access basis

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. Grant leave to the applicant to rely upon the second amended application initialled by the Court and dated today and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The second amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 318 of 2018

AOV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 17 January 2018 affirming a decision of the delegate not to grant the applicant a Temporary Portection Visa.

2. The applicant was found to be a Tamil from the Eastern Province of Sri Lanka, and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 26 September 2012. The applicant claimed to have been born in Batticaloa in the Eastern Province, and that in about 1990 his family was displaced by fighting between the Sri Lankan authorities and the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claimed that his father took him and his brothers to Colombo to prevent them being forcibly recruited by the LTTE.

3. The applicant alleged that in 2005 he was targeted because he was a wealthy jeweller, and that the LTTE abducted him for three days until he paid them 300,000 rupees. The applicant alleged the LTTE issued a receipt with the applicant's name upon it. The applicant alleged that three months later the Karuna Group paramilitary ordered the applicant to attend a camp they shared with the Sri Lankan authorities.  The applicant alleged they accused the applicant of supporting the LTTE, which the applicant denied, and threatened to beat the applicant until he admitted the truth. The applicant claimed he was let go with a warning that he would need to return for further inquiries and to pay any money they demanded. The applicant claimed that he was forced to sign a document, which he did not understand. 

4. The applicant claimed the Karuna Group came to his home and demanded money on a number of occasions. The applicant alleged he was forced to close his jewellery shop and went into hiding. The applicant claimed that after he came to Australia in 2012 his wife was forced by the Karuna Group to give them money. The applicant alleged that between 2002 and 2009 three of his siblings relocated to Canada, and the applicant claimed that one of his brothers went missing in Indonesia in 2008 or 2009. On 13 April 2017 the delegate found the applicant failed to meet the criteria for the grant of a protection visa. 

The Authority

1. On 19 April 2017, the Authority wrote to the applicant informing the applicant that the application for protection had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information and provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. Submissions dated 11 May 2017 were then provided on behalf of the applicant to the Authority and were expressly taken into account in the Authority's reasons. 

2. In the Authority's reasons, the Authority identified the background to the visa application and having regard to the information referred under s 473CB of the Act. The Authority dealt with new claims and new information under s 473DD of the Act. Part of that information relevantly included two sources of country information that post-dated the delegate's decision, and in respect of which the Authority was not satisfied there were exceptional circumstances that existed to justify considering that new information. 

3. The Authority identified the applicant's claims and set out the relevant law. The Authority accepted a number of the applicant's claims as to his past experience in Sri Lanka, including that he had been abducted by the LTTE for three days in 2007 because he was regarded as a wealthy goldsmith, and that he had to pay a sum to be released. The Authority also accepted that the applicant had undertaken training with the LTTE at around this time. The Authority accepted that three months later the Karuna Group summoned the applicant to a nearby camp, and that he was detained and interrogated about his LTTE connections, and was beaten until he confessed his past involvement. The Authority accepted the applicant's claim that he was released after he made a payment to the Karuna Group. 

4. The Authority found, however, that the applicant's evidence to the delegate as to whether the Sri Lankan authorities, or the paramilitary branch of the Karuna group were responsible for the incident was confused. The Authority found it implausible that following the incident, the applicant opened a jewellery store in Batticaloa rather than returning to Colombo where he had resided and worked for the previous 15 years.

5. The Authority referred to numerous discrepancies between the applicant's written Temporary Protection visa claims and his evidence to the delegate at the interview. The Authority noted the applicant's evidence stated that he continued to pay extortion demands until he departed Sri Lanka, and that his wife continued to do so on his behalf. The Authority referred to the applicant's answers given to questions asked by the delegate as to how he was able to continue paying extortion money when he had claimed that he had closed his jewellery business and gone into hiding. The Authority found the applicant's evidence was vague and contained significant inconsistencies.  The Authority did not accept the applicant was extorted again after opening his own business in 2008, that he closed his shop down, or that he went into hiding at any time prior to his 2012 departure by boat. 

6. The Authority took into account country information and improvements in Sri Lanka in recent years and after taking into account other findings, the Authority was not satisfied the applicant was or would be of interest to the Sri Lankan authorities or paramilitary groups for the reasons he advanced. The Authority was not satisfied the applicant had a well-founded fear of persecution arising from his status as an asylum seeker from Australia as someone who departed or someone who departed Sri Lanka illegally.

7. The Authority found the applicant did not meet the requirements of the definition of refugee under s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act and s 36(2)(aa) of the Act.  Accordingly, the Authority affirmed the decision under review.

Before this Court

1. The grounds in the second amended application are as follows:

   (1) The IAA made jurisdictional error in that it misconstrued s 473DD(a) & (b)(ii) and failed to take into consideration country information that post-dated the Delegate's decision.

   Particulars

   (a) At CB338[12] the IAA either did not address 473DD(ii) or if it did it misconstrued and misapplied 473DD(ii).

   (b) At CB338[12] the IAA refused to consider what happened to a Tamil person who arrived in Sri Lanka from Australia. See CB328-329 for the news report and its translation. Related article in Tamil appears on CB 314-315 & 317-318. This contradicts the country information it used at [38] & [39] making it exceptional under s473DD(a) on its own or with other matters such as s473DD(ii) matters.

   (2) The IAA made jurisdictional error in that it made an adverse credibility finding about the applicant opening a jewellery store in Batticaloa, that was not open on the evidence

   Particulars

   (a) At CB 341 [25] the IAA made a finding of implausibility about that fact that after a particular incident which took place when the applicant was visiting Batticaloa from Colombo he would open a jewellery store in Batticaloa rather than returning to Colombo;

   (b) Finding of implausibility (meaning " beyond human experience") is a very high probability finding or near certainty finding;

   (c) There were several reasons which would demolish that finding as follows:

   (i) CB340[22] - the applicant was accused of being responsible for bombing in Colombo but note [23] - that the Delegate considered the threat empty;

   (ii) Transcript pg7 In 10-13 - due to machineries - job was being reduced;

   (iii) His family - including his wife was in Batticaloa - pg6 In 8-12;

   (iv) Pg 5 In 41-44 and later Pg 21 ln 24-40- They will call me to come to Kaluwanchikudy (in Batticaloa); and

   (v) Pg 8 ln 1-3 at the time army took over less problem.

   (3) The IAA made jurisdictional error in that the IAA misapprehended the applicant's evidence, made adverse credibility findings which were unsupported by evidence

   Particulars

   (a) At CB 341[28] the IAA found that in 2009, three years before his departure from Sri Lanka by boat, he closed down his jewellery business and went into hiding;

   (b) At CB 131 & CB208 [5.25] the applicant stated that during the day he would go to the shop but at night he would sleep at various locations;

   (c) At CB 342 [30] & [32] the issue ( or rather non-issue) whether he said that he went into hiding for three years was very strongly used against the applicant.

   (4) The IAA made jurisdictional error in making a finding (a) where there was no evidence and/or (b) It was unreasonable to make such a finding

   Particulars

   (a) At [38] the IAA found that paramilitaries, such as Karuna Group, as well as the LTTE, are no longer operational in Sri Lanka;

   (b) The two reports sited on CB343[38] foot note 5 does not support that;

   (c) There is no evidence which says that Karuna Group does not operate in Sri Lanka and in any case it was unreasonable to make such a finding; and

   (d) The applicant did claim that he will be persecuted by the Karuna Group.

   (5) The IAA made jurisdictional error in making a finding about the possibility of extortion in Sri Lanka, which is unreasonable or illogical

   Particulars

   (a) At [39] the IAA stated that because there are several anticorruption bodies and there are investigations going on in Sri Lanka now and therefore it is not satisfied that there is real chance the Sri Lanka authorities, the Karuna Group, or any other paramilitary would extort the applicant, a wealthy goldsmith; and

   (b) Various country information contradicts this finding. Eg. CB 328-329

Ground 1

1. In relation to ground 1, Mr Silva of counsel took the Court to the authorities supporting the requirement that the Authority must take into account both limbs of s 473DD of the Act in determining whether exceptional circumstances are made out. Mr Silva also referred to the recent authorities discussing the breadth of meaning of credible personal information, as well as the preliminary nature of the assessment in respect of credibility under s 473DD of the Act. Mr Silva submitted that the Authority had misconstrued s 473DD(a) and s 473DD(b)(ii) of the Act. 

2. Mr Silva drew the Court's attention to and relied upon, the absence of express reference to s 473DD(b) of the Act in paragraph 12 of the Authority’s reasons in respect of the two articles that the Authority found there were not exceptional circumstances that existed to justify consideration. Mr Silva submitted that there was express reference to s 473DD(b) of the Act in respect of other new information that was considered by the Authority in paragraphs 6, 9, 10 and 14.

3. Mr Silva also placed reliance on the absence of express reference to credible personal information in advancing the submission that the Authority had misconstrued or failed to take into account both limbs of s 473DD of the Act. The Authority's reasons in relation to the new information the subject of ground 1 are paragraphs 11 and 12 and are as follows: 

   11. Two of the sources of new country information attached to the IAA submission postdate the delegate’s decision and for that reason I am satisfied they could not have been provided any earlier. The first of these articles discusses the situation for the relatives of those who have gone missing in Sri Lanka. The article claims the CID have photographed these people in a threatening manner and the government has ignored their situation. The applicant has not explained how this article is relevant to his own situation, and I note he has not claimed to have any relatives who are missing in Sri Lanka.

   12. The second of these two articles discusses the situation of a Tamil person from Jaffna, who returned there for ‘personal reasons’ after living in Australia for a long time. Two weeks after his arrival in Sri Lanka he was kidnapped, along with two of his brothers, tortured and questioned about his LTTE association. The person and his brothers were only released when another relative paid money to the kidnappers. The applicant has not explained how this article is relevant to his situation and makes very specific, but unsubstantiated, allegations regarding the mistreatment of the Tamil person in question. I also note the article refers to the kidnappers as from the ‘army intelligence unit’, but also as ‘unknown persons’. There is no evidence before me that the person in question was a returning asylum seeker or that the military were in fact responsible. I also note that neither of the articles are about the applicant or any person he purports to have links with, and while they deal with issues that broadly relate to the applicant’s claims, being the mistreatment of Tamils, overall I am not satisfied that exceptional circumstances exist to justify their consideration.

4. Mr Silva also took the Court to the reference in paragraph 12 of the Authority’s reasons as to it not being explained how the article was relevant to the applicant's situation. The same observation was made in relation to the first article in paragraph 11 of the Authority’s reasons. The applicant's statement dated 11 May 2017 provided to the Authority relevantly said:

   There are incidents still taking place in Sri Lanka which illustrate the fact that if I return life will be in danger too. I have attached some country information.

5. The Authority's observation in relation to the new information was open and the reference to "attached some country information" by the applicant does not on its face, explain how the two articles are relevant to the applicant's situation. In relation to the second article, Mr Silva emphasised that the article referred to the mistreatment of a particular individual, being a Tamil person, allegedly being a returned asylum seeker. It is apparent from the Authority’s reasons that the Authority took into account the nature of the new information in applying s 473DD of the Act. 

6. Mr Silva also criticised the reference at paragraph 12 of the Authority’s reasons to there being no evidence in relation to whether the person in question in the second article was a returning asylum seeker or that the military were in fact responsible. Mr Silva submitted that the Authority had engaged in the determinative process of credibility rather than in the preliminary assessment required under s 473DD(b)(ii) of the Act. 

7. The Authority's reasons are not to be read with a keen eye for error. It is apparent from the Authority's reasons and reference in considering other new information that the Authority took into account both limbs of s 473DD of the Act. The Authority expressly referred in paragraph 6 to credible personal information and it should not be inferred that this limb of s 473DD of the Act was not taken into account in the reasoning in paragraph 12 of the Authority’s reasons. The Authority's reasoning in paragraph 12 did not find that the article was not credible personal information, but rather the Authority took into account that neither article was about the applicant or any person that he purported to have links with, and found that although the articles dealt with the issues that broadly relate to the applicant's claims being the mistreatment of Tamils, the Authority overall, was not satisfied that there were exceptional circumstances that existed to justify consideration of the new information. The reference to "overall" reinforces that the Authority took into account both limbs of s 473DD of the Act. 

8. I do not accept that the Authority engaged in a determinative approach in the assessment of whether the information fell within the second limb of s 473DD(b)(ii) of the Act. I reject the argument that the Authority did not have regard to s 473DD(b)(ii) of the Act in circumstances where it is clear that the Authority did address the question of whether it was previously known expressly in identifying that it post-dated the delegate's decision and where the Authority referred to the potential broad impact in respect of the applicant's claims. I find the Authority did take into account the significance of the new information. Those reasons support the Court finding that the Authority did have regard to both limbs of s 473DD of the Act.

9. I do not accept that the Authority misconstrued s 473DD(a) or s 473DD(b)(ii) of the Act. I do not accept that the Authority treated the second article as not capable of being credible personal information, nor does the absence of express reference to credible personal information support any misconstruction of the provision as alleged by the applicant. Further, the absence of express reference to s 473DD(b) of the Act does not mean that the Authority failed to take the same into account because, as I have identified, the Authority expressly referred to the new information post‑dating the delegate's decision and expressly referred to the impact of the information in relation to the applicant's claims.

10. Mr Silva also contended that the information in the second article was inconsistent with and contradicted information in footnote 5 to the Authority's reasons which was tendered into evidence. Footnote 5 related to a reference provided by the Authority in considering country information in the context of the improvement of the security situation in Sri Lanka and that paramilitary groups, such as the Karuna group, as well as the LTTE, are no longer operational in Sri Lanka. The second article does not support the asserted inconsistency, as it refers to alleged activities by detectives and does not purport to assert that the paramilitary groups, such as the Karuna group or the LTTE, are operational in Sri Lanka. I do not accept that the Authority misconstrued s 473DD(a) or s 473DD(b)(ii) of the Act. 

11. Mr Silva also drew attention to the fact that the article post-dated the delegate's decision and the more recent country information. It is apparent in the Authority's reasons that the Authority took into account that the country information in respect of the two sources which post-dated the delegate's decision. The country information was not of a kind that required the Authority to expressly refer to the same in that context. The Authority's reasons clearly reflect taking into account the nature and significance of the alleged new information in determining whether or not there were exceptional circumstances within s 473DD of the Act. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Silva took issue with the Authority’s finding in paragraph 25. Relevantly that paragraph provides as follows: 

   25. However I consider it implausible that after this incident, which occurred when the applicant was visiting Batticaloa for a festival, he would then open a jewellery store there, rather than return to work in Colombo where he had resided and worked for the previous fifteen years. The applicant explained to the delegate that he would have been forced to comply with the Karuna Group’s demands for money, regardless of whether he was in Batticaloa or Colombo; however I do consider this response adequately explains why the applicant chose to return to Batticaloa.

2. Paragraph 25 is not to be read in isolation. It must be read in the context of the Authority’s reasons in which the Authority expressly accepted that the applicant was required to undergo four days of training with the LTTE and that three months later the Karuna group summoned the applicant to a nearby camp. The Authority accepted the applicant was held for most of the day and interrogated, and accepted that he was beaten until he admitted he paid money to the LTTE and participated in training. The Authority also accepted that the applicant was released on the basis that he pay 100,000 rupees, and give them two mobile phones, and he was forced to sign a document that he could not read. The Authority accepted the applicant was warned he would need to return for further inquiries and make further payments. The Authority also noted that the monetary payment amounted to one‑third what the applicant had been required to pay to give the LTTE. The Authority noted the applicant was released after less than one day in custody and had not claimed to have been detained again after that incidence.  The Authority found that the accusations made regarding the Colombo bombing raised with the applicant were of no substance. 

3. The Authority then referred to the applicant’s evidence as to whether the Sri Lankan authorities or Karuna group were responsible for the incident three months later and found the evidence was confused.  The Authority took into account country information in relation to the Karuna group operating initially with the LTTE and then as a government-sponsored paramilitary in the north-east of Sri Lanka identifying country information in that regard. The Authority accepted that the Sri Lankan authorities and the Karuna group worked together to detain, interrogate and extort the applicant on that occasion.  

4. It was in this context, that the Authority turned to it being implausible that after this incident, when the applicant was visiting Batticaloa for a festival, he would then open a jewellery store there rather than return to work where he had resided and worked for the previous 15 years. I accept this was a credibility finding in relation to the applicant’s evidence and for the reasons given the finding was open. The Authority referred to the applicant’s explanation that he would have been forced to comply with the Karuna group’s demands for money regardless of whether he was in Batticaloa or Columbo.  The Authority did not however, accept that adequately explains why the applicant chose to return to Batticaloa. 

5. The Authority also took into account in this regard the numerous inconsistencies between the applicant’s written Temporary Protection visa statement and his evidence to the delegate of the Temporary Protection visa regarding the events that he claimed occurred after his interrogation at the camp.  The Authority referred to the inconsistency in relation to collection of 100,000 rupees at a particular location and two mobile phones whereas the applicant’s written statement referred to interrogators coming to his house and demanding 25,000 rupees, which was collected the following morning. 

6. The Authority further referred to the applicant’s evidence regarding extortion attempts he faced after opening his business to be very vague and noted that he did not mention those in his written claims and noted that he did not mention in his written claims that he tried to relocate, that the Sri Lankan authorities threatened his family or that, on one occasion, they locked him out of his shop until he paid them. The Authority also referred to the applicant’s evidence in relation to the Red Cross and found it contradicted the applicant’s written Temporary Protection visa statement that in 2009 he had approached the Red Cross offices to make a complaint about extortion, but that the Red Cross had refused to register it. The Authority also referred to the applicant’s claim that he continued to pay extortion demands until he departed Sri Lanka and that his wife continued to do so. The Authority made express reference to the applicant’s Temporary Protection visa statement in 2017 that in 2009, three years before his departure from Sri Lanka by boat, he had closed down his jewellery business and went into hiding. 

7. The Authority noted the delegate questioned the applicant as to how long he managed to continue to earn money and meet extortion demands and yet also remain in hiding from the extorters.  The Authority referred to the applicant’s statement that he was forced to close down his shop in fear of his life and that he hid in a church for 15 days.  The Authority noted that the applicant did not refer to this incident in the statement that he had closed his shop and went into hiding following a dispute with the Karuna group and the Sri Lankan authorities regarding payment for some jewellery. 

8. The applicant’s statutory declaration in paragraph 5.21 referred to being forced out of his shop and in paragraph 5.23, that, in about November 2009, he went to the Red Cross to try and make a complaint and that in paragraph 5.24, shortly after, the KPG and members of the SLA and CID came to his shop and said they wanted the applicant to make items of jewellery because he was a goldsmith and that they refused to pay because the applicant was an LTTE supporter.  The applicant expressly alleged in paragraph 5.25 that he was forced to close his shop and the applicant made an express reference to going to the shop during the day but at night the applicant alleged he would sleep in various locations in the neighbourhood to avoid being arrested and tortured or killed. That is clearly a reference to the applicant going into hiding.

9. The transcript of the Temporary Protection visa interview was also tendered into evidence and made express reference to exploring with the applicant his evidence in relation to being in hiding. There is no substance in the contention that the adverse finding by the Authority in respect of paragraph 25 of its reasons was not open. Further, the adverse finding cannot be said to be illogical or unreasonable. The significance of the applicant asserting that he was sleeping in various locations to avoid arrest, torture or being killed is clearly a reference to being in hiding, and it was open to the Authority, given the adverse credibility findings summarised above for the Authority to reject it. 

10. Mr Silva submitted that the reference to implausibility meant that the Authority could not make such a finding if there was any plausible explanation open for the applicant’s evidence. I do not accept that proposition. Mr Silva’s submissions as to alleged plausible explanations are in substance, an invitation to this Court to engage in impermissible merits review. Further, it was a matter for the Authority whether it accepted the applicant’s evidence of allegedly hiding at night in various locations. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, Mr Silva submitted that there was no express reference to the applicant going into hiding. That submission is contrary to the evidence and in particular, is contrary to paragraph 5.25 of the applicant’s statutory declaration as referred to above. It is also inconsistent with the transcript of the interview before the delegate in which the applicant going into hiding was an issue explored with the applicant. Given the other adverse credibility findings, which the Authority took into account, it cannot be said that the adverse finding was unreasonable or irrational. Accordingly, the findings by the Authority in relation to taking into account the rejection of the applicant’s evidence in respect of having gone into hiding was open to the Authority in paragraphs 30 and 32.  No jurisdictional error, as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Silva submitted that the finding in paragraph 38 of the Authority’s reasons was unsupported by evidence or was unreasonable. The Court was taken to both articles identified in footnote 5 of the Authority’s reasons. The two articles refer to the Karuna group and the second, more recent article refers to DFAT’s assessment that the LTTE no longer exists as an organised force in Sri Lanka. The first article expressly referred to the Karuna group in the past tense and referred to the Karuna group led LTTE breakaway faction known as the Tamil Makil Vidilu Pugulu (TMVP) being involved in abductions, killings and extortion. The article also referred to the Karuna faction, like the mainstream LTTE, having no comprehensive intelligence handlers and that the TMVP cadres were like “running dogs of imperialism”. 

2. I do not accept the submission that the two articles do not support the Authority’s reasons. In paragraph 38 of the Authority’s reasons, it was a matter for the Authority to make findings from the country information that was before the Authority.  The footnotes in the Authority’s reasons support the Authority taking into account country information in making adverse findings that it was open to the Authority to infer.  The inference from the country information referred to, that paramilitaries such as the Karuna group as well as the LTTE are no longer operational in Sri Lanka was open to the Authority and it was reasonable for the Authority to make such a finding in light of the country information and in light of the improved security situation to which the Authority referred. The proposition that there was no evidence to support the adverse finding is not made out and the proposition that it was unreasonable for the Authority to make such a finding is not made out. It was a matter for the Authority to make findings based on the country information, having taken into account the improved security situation.  I do not accept that the Authority’s finding was irrational, illogical or not based on evidence.  No jurisdictional error as alleged in ground 4 is made out. 

Ground 5

1. In relation to ground 5, Mr Silva submitted that the finding of the Authority in paragraph 39 that the Authority was not satisfied there is a real chance that the Sri Lankan authorities, the Karuna group or any other paramilitary would extort the applicant, a wealthy goldsmith, for money if he returned to Sri Lanka was said to be allegedly unreasonable or illogical. The Authority made express credibility findings rejecting the applicant’s claim of ongoing extortion in paragraph 34 of the Authority’s reasons. The Authority did not accept the applicant was of adverse interest to the Sri Lankan authorities or the Karuna group at the time of his departure and did not accept that the authorities or Karuna group had extorted money from his wife since then. The Authority also made findings, as referred to above, rejecting that paramilitary groups such as the Karuna group, as well as the LTTE, are still operational in Sri Lanka.  The Authority’s finding at paragraph 39 cannot be said to be illogical or irrational or unreasonable. 

2. Mr Silva’s submission that the finding was inconsistent with the information at page 328 and 329 of the Court Book is a reference to new information that did not meet the requirements of s 473DD of the Act and accordingly, cannot make out any alleged error as advanced in ground 5. Mr Silva also referred to the DFAT country information in paragraphs 415 to 419 in Exhibit B.  It was a matter for the Authority to determine what country information the Authority accepted. I do not regard the Authority’s reasoning in paragraphs 39 and 42 as being unreasonable or illogical. No jurisdictional error as alleged in ground 5 is made out. 

Conclusion

1. As the second amended application fails to make out any jurisdictional error, the second amended application is dismissed. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 July 2018