Ayq18 v Minister for Home Affairs

[2019] FCCA 332

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 332

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka on various bases – applicant’s claims of serious physical harm accepted but his fears found not to be well-founded – numerous errors alleged – Authority decision questionable but free from jurisdictional error – application dismissed with observations on the question of Ministerial intervention.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 91R

Cases cited:

Minister for Immigration v WZAPN [2015] HCA 22

Applicant: AYQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 535 of 2018

Judgment of: Judge Driver

Hearing date: 13 February 2019

Delivered at: Sydney

Delivered on: 19 March 2019

REPRESENTATION

Solicitors for the Applicant: Mr E Rajadurai of Divine Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application as amended on 28 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 535 of 2018

AYQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 February 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant is a male citizen of Sri Lanka born on 8 May 1989.[1] The applicant arrived in Australia on 29 April 2013 at Cocos (Keeling) Islands as an unauthorised maritime arrival.[2]

   [1] Court Book (CB) 16

   [2] CB 227

4. The applicant applied for a Safe Haven Enterprise Visa[3] on 4 July 2016.[4] The applicant's claims were set out in a statement accompanying the application.[5] In summary, the applicant claimed:

   a)the Sri Lankan Army[6] suspected the applicant's family of Liberation Tigers of Tamil Eelam[7] involvement because his father bought a paddy from the LTTE;

   b)he was detained for 10 days and severely mistreated by the SLA in 2009 on suspicion of being an LTTE supporter and celebrating Prabakaran's[8] birthday. On his release, he was subject to ongoing reporting obligations and during these monthly reports the applicant was severely mistreated by the SLA: he sustained injuries to his arms in 2011 and his finger nails were removed with pliers in 2012. The applicant was assaulted in 2013 by authorities and was still required to report to authorities when he left Sri Lanka in 2013;

   c)if he returned, he would be tortured again by the SLA or Criminal Investigation Division[9] for not telling them he was leaving because they suspected he supported the LTTE because of the birthday celebration;

   d)he is a Tamil male, from the north (Jaffna), who left Sri Lanka illegally, and would return as a failed asylum seeker with a suspected LTTE profile;

   e)he would be questioned by the CID on return at the airport and would be persecuted and prosecuted for his illegal departure on the basis of his profile as a Jaffna Tamil male with suspected LTTE links; and

   f)he would suffer continually in detention until his family bail him out, and there was no one in Colombo to vouch for him or bail him out.

   [3] SHEV

   [4] CB 37

   [5] CB 77-80

   [6] SLA

   [7] LTTE

   [8] the LTTE leader

   [9] CID

5. On 6 June 2017, the delegate refused the application on the basis that the applicant did not have a well-founded fear of persecution in Sri Lanka and there was not a real risk the applicant would suffer significant harm if returned to Sri Lanka.[10]

   [10] CB 227

6. The matter was referred to the Authority for review.

7. On 28 June 2017, the applicant's representative provided submissions and documents to the Authority.[11]

   [11] CB 253

8. On 8 February 2018, the Authority affirmed the decision under review.[12]

The decision of the Authority

[12] CB 288

New information

1. The Authority found that the following documents and claims provided by the applicant to the Authority amounted to new information:[13]

   a)copies of medical records relating to his treatment in Sri Lanka following his claimed mistreatment by authorities (medical records);

   b)a copy of a clinical history from a doctor in Sri Lanka following his claimed mistreatment by authorities (clinical history);

   c)copies of attestations from each of the applicant’s brothers stating one brother travelled to Canada in 1996 and the other in 1995 (attestations of applicant’s brother);

   d)citizenship documents showing each brother is a citizen of Canada (citizenship records); and

   e)a copy of an article titled “Security Forces in Sri Lanka Continue to Operate with Impunity” dated 12 March 2017 and appearing in The Wire (article).

   [13] [5]

2. The Authority had regard to the medical records and it:[14]

   a)was satisfied that there were exceptional circumstances to justify considering the medical records;

   b)was not satisfied that the medical records could not have been provided to the delegate, noting that the medical records predated the delegate's decision;

   c)noted that the applicant's lawyer submitted that the applicant threw out some of his medical records, which he brought by boat to Australia, but later discovered the records amongst his possessions; and

   d)was satisfied that the medical records were credible personal information. The Authority noted that the reports were partly illegible but related to the diagnosis and treatment of the applicant's back injury, and were contemporaneous with the applicant's claimed mistreatment.

   [14] [6]

3. The Authority had regard to the clinical history and it:[15]

   a)was satisfied that there were exceptional circumstances to justify considering the clinical history;

   b)was satisfied that the clinical history could not have been provided to the delegate as the documents were dated 20 June 2017;

   c)was satisfied that the clinical history was credible personal information; and

   d)noted that the clinical history was from the doctor who treated the applicant in Sri Lanka and that the clinical history was contemporaneous with the applicant's claimed mistreatment in 2009.

   [15] [6]

4. The Authority had regard to the attestations of the applicant's brothers and it:[16]

   a)was satisfied that the attestations of the applicant’s brothers could not have been provided to the delegate;

   b)was satisfied that the applicant’s attestations of the applicant’s brothers was credible personal information; and

   c)was satisfied that there were exceptional circumstances to justify the attestations of the applicant’s brothers.

   [16] [7]

5. The Authority did not have regard to the citizenship records.  It was not satisfied that they could not have been provided to the delegate or that they were credible personal information. The Authority was also not satisfied that there were exceptional circumstances to justify consideration of the new information.[17]

   [17] [8]

6. The Authority did not have regard to the article.  It was not satisfied that it could not have been provided to the delegate or was credible personal information. The Authority was also not satisfied that there were exceptional circumstances to justify consideration of the information.[18]

   [18] [9]

Consideration of claims

1. The Authority did not accept the applicant's claim that his father's past business dealing with the LTTE led the authorities to suspect that his family was linked to, or supported, the LTTE, or that this was why the applicant was of suspicion to authorities twenty years later.[19]

   [19] [13], [32], and [36]

2. With the exception of the later claimed incidents concerning the applicant, the Authority considered the fact that the applicant's family had not been harassed by authorities from the time his father had business dealings with the LTTE onwards was inconsistent with the applicant's claim that his family was of suspicion as a result of those business dealings.  This was particularly so considering the broad powers of arrest and detention available to Sri Lankan authorities, which country information indicated was frequently, often arbitrarily, used during the conflict to identify persons with LTTE links.[20]

   [20] [13]

3. The Authority placed little weight on a letter from a member of parliament, dated 2 May 2016, because the writer did not claim to have first-hand experience of the applicant's claimed detention and harassment by the SLA, which happened seven years before the letter was written.[21]

   [21] [16]

4. Based on the totality of the evidence, including the consistency of the applicant's claims, both internally and with the documentary evidence and country information, the Authority was willing to accept that the applicant was detained for 10 days by the SLA, or persons connected with the SLA, on 26 November 2009 and mistreated.[22]

   [22] [21]

5. The Authority accepted that the applicant was detained and severely mistreated by authorities on suspicion of celebrating Prabakaran's birthday, immediately after the war in November 2009, given the strong military presence, the government's fears of a resurgence of the LTTE, and that the applicant was a young Tamil male in the north of Sri Lanka at that time.[23]

   [23] [32]

6. The Authority accepted that the applicant had ongoing reporting obligations after being released and was sometimes assaulted during those incidents.[24]

   [24] [23] and [32]

7. On the totality of the evidence, the Authority was willing to accept that as part of the ongoing reporting obligations, the applicant may have been assaulted in 2011 and 2012, resulting in injuries to his arm and fingers.[25]

   [25] [24]

8. The Authority did not accept the applicant's claim that "A", who he met in the army camp, disappeared, because no further details were provided about this claim, and it was not mentioned again after the SHEV interview.[26]

   [26] [26]

9. The Authority did not accept that the applicant's reporting obligations extended into 2013 because the applicant did not mention this in the biodata or arrival interviews, and only made this claim in the SHEV interview when specifically asked by the delegate.[27] The Authority found it implausible that the applicant would continue to have to report to the SLA in 2013, so many years after his release, especially given the short duration of his detention and the nature of his purported "crime".[28]

   [27] [27], [32], and [36]

   [28] [27]

10. The Authority did not accept that the authorities visited the applicant's home looking for him after he left Australia based on the applicant's answers in his SHEV interview where he indicated that his parents had not reported any actual visits by authorities.[29]

    [29] [28], [32], and [36]

11. The Authority accepted that the applicant would be identified by Sri Lankan authorities as having departing illegally, as a returning asylum seeker, and as a Tamil of Hindu faith.[30] However, the Authority did not accept that the applicant was of ongoing interest to the authorities in connection with an adverse security profile when he left for Australia by boat in 2013.[31] As a result, the Authority found there was not a real chance the applicant would be harmed on this basis.[32]

    [30] [29] and [38]

    [31] [32]

    [32] [37]

12. With regards to country information, the Authority found, based on the applicant's profile and available country information, that there was not a real chance the applicant would be detained, interrogated, tortured, or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin, previous experiences in Sri Lanka, or because he has lived in Australia for the past four years.[33]

    [33] [36]

13. Based on available country information and the applicant's circumstances, including his sore back, the Authority was not satisfied the applicant's detention would amount to serious harm.[34] The Authority was not satisfied that the imposition of a fine would amount to serious harm, on the basis of the applicant's evidence and that a fine could be paid by instalments.[35]

    [34] [40]

    [35] [41]

14. The Authority was not satisfied that any treatment the applicant might experience as a consequence of his illegal departure would amount to serious harm.[36]

    [36] [42]

15. The Authority found that the treatment the applicant would face as a consequence of the Immigrants and Emigrants Act was not persecution for the purposes of s.5J(4) of the Migration Act 1958 (Cth) (Migration Act) as country information indicated it was not discriminatory on its face, or in its application or enforcement.[37]

    [37] [43]

16. The Authority found the applicant did not meet the requirements of s.5H(1) or s.36(2)(a) of the Migration Act.

17. Turning to complementary protection, the Authority was not satisfied the applicant would face a real risk of significant harm on his return to Sri Lanka by reason of being a Tamil male, his origins, his father's business, his previous experiences in Sri Lanka or as a returning asylum seeker.[38]

    [38] [47]

18. The Authority accepted there was a real risk the applicant might be interviewed, charged for departing illegally, fined and briefly detained (possibly in prison), but was not satisfied that this treatment amounted to significant harm under s.36(2A) based on country information.[39]

    [39] [48]

19. The Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Sri Lanka there was a real risk the applicant would suffer significant harm and, therefore, the applicant did not meet s.36(2)(aa) of the Migration Act.[40]

    [40] [49]

The present proceedings

1. These proceedings began with a show cause application filed on 1 March 2018.  The applicant now relies upon an amended application filed on 28 May 2018.  There are nine grounds in that application:

   Ground One

   IAA made a jurisdictional error by not considering a relevant issue.

   Particulars

   IAA failed to discern that the mistreatment suffered by the Applicant amounted to torture or inhumane and cruel treatment. Applicant claimed:

   While we were celebrating my mother’s birthday I was taken and beaten with a thrust iron box on my back. The Sri Lankan Army beat me. I‘m not sure what it was but they kept something very hot on my back. I have a scar on my back. As a result I got a slipped disc at low back and high neck. There is slip of bone in my arm. I don’t know how it happened, sometimes it comes out. When the bone comes out, it is sore. I received an injury on my arm as a result of my beating. When we were celebrating the birthday they beat me first on my neck. CB 77: at 3

   The next occasion, the same day I was beaten on my body. Army people as they came in civil clothes when we were celebrating at home and I was taken from my home by the army people. I was at home, my father was not at home. There was a celebration happening for my mother’s birthday along with my Tamil friends. CB: 77 at 3

   It is submitted that Applicant satisfies the requirement of the qualitative assessment enunciated by the High Court in WZAPN.

   Ground two

   The Authority’s reasoning is infected with jurisdictional error by failing to exercise jurisdiction to discern a Convention nexus.

   Particulars

   IAA failed to relevantly discern that the Applicant was suspected of LTTE support as he was perceived to be celebrating the birthday of LTTE leader Prabakaran which fell on his mother’s birth day which is also

   Applicant claimed:

   Army people as they came in civil clothes when we were celebrating at home and I was taken from my home by the army people. I was at home, my father was not at home. There was a celebration happening for my mother’s birthday along with my Tamil friends. CB: 77 at 3

   It is submitted that the relevant Convention reason is perceived LTTE support.

   Ground Three

   IAA fell into jurisdictional error by failing to consider a relevant issue.

   Particulars

   IAA misunderstood Applicant’s claim in that Applicant’s main claim was that he was seen as a supporter of the LTTE as he was perceived to be celebrating LTTE Leader Prabakaran’s birthday although it was Applicant’s mother’s birthday he was celebrating. That is the event which led to his persecution. IAA refers to other reasons such as ethnicity leading to torture.  

   IAA concluded that I find that there is not a real chance the Applicant will be detained tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin, previous experiences in Sri Lanka or because he lived in Australia for the last four years. CB 297: 36

   IAA failed to engage in a mental/ thought/ intellectual process to deduce the reasons for Sri Lankan forces to torture Applicant.

   Ground four

   IAA misunderstood the well-founded fear test.

   Particulars

   Applicant does not have to establish that he will be persecuted. What he has to establish is he has a well-found fear of being persecuted.

   IAA concluded that I find that there is not a real chance the Applicant will be detained tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin, previous experiences in Sri Lanka or because he lived in Australia for the last four years. CB 297: 36

   Ground five

   IAA fell into jurisdictional error by misapplying the real chance test based on the country information and disregarding the probability of Applicant being tortured again. .

   Particulars

   IAA referred to DFAT report stating …since the end of the civ war there has been a significant reduction in the incidents of extra-judicial killings, disappearances and abductions for ransom.  CB 297: at 35

   It is submitted that reduction does not mean the problems have come to an end. There was overwhelming country information pointing to torture perpetrated on persons like the Applicant.

   Ground six

   IAA fell into a jurisdictional error.

   Particulars

   IAA failed to discern that on return the applicant will be identified as a former supporter of the LTTE. CB 297: at 37.

   Ground seven

   IAA misunderstood the well-founded fear test.

   Particulars

   What Applicant has to establish to the satisfaction of the decision maker is that he has well-founded fear of being persecuted. There is no need to establish that he will be persecuted.

   Ground eight

   The IAA decision is unreasonable.

   Particulars

   IAA reasoning is unreasonable that no reasonable person would have arrived at this decision.

   Applicant was cruelly treated by the Sri Lankan security forces by using a hot iron.

   There was overwhelming evidence that torture still prevailed in Sri Lanka.

   Even if Applicant will not be tortured he will have to live with fear that he will be tortured because of the past events.

   Ground nine

   IAA failed to engage in procedures it ought to have engaged.

   Particulars

   IAA did not record and reflect in its decision the inquiry which took place between the SLA and the Applicant to discern a relevant Convention nexus.

   Had IAA engaged itself in such an inquiry and recorded it in its decision, it would have been possible to discern as to why SLA tortured Applicant.  

   (errors in original)

2. I have before me as evidence the court book filed on 12 April 2018. 

3. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of the matter on 13 February 2019. 

Consideration

1. This case is somewhat unusual.  The applicant claimed that, following his initial mistreatment in 2009 and between 2009 and at least 2012 he was required to report periodically to the SLA because of suspicion of being an LTTE supporter and that, in connection with that reporting obligation, he was severely mistreated in 2011 and 2012.  That mistreatment amounted to torture.  The applicant had medical evidence to support his claims of severe physical mistreatment which was accepted.  I was invited to view photographs of the consequences of torture of the applicant but I did not consider it necessary to do so.

1. Notwithstanding the past incidents of torture, the Authority did not accept that the applicant is a refugee or qualifies for complementary protection.  The essence of the Authority’s reasoning was that the physical mistreatment occurred because of the reporting obligation when the applicant reported.  The Authority reasoned that the reporting obligation did not continue into 2013 with the result that there was no physical mistreatment after 2012.  The Authority reasoned that there was nothing precipitating the applicant’s departure from Sri Lanka in 2013 and that, by reference to country information, circumstances had improved such that he would not be at serious or significant risk of harm on return.

2. Having been tortured in the past on several occasions, it is understandable that the applicant holds grave fears as to what might happen on his return to Sri Lanka.  The Authority did not accept that the applicant’s fears are well-founded but, given that the applicant’s mistreatment was much worse than is commonly the case with claimants from Sri Lanka, it is entirely possible that a different decision maker might have come to a different conclusion.  Given that possibility, and the basic proposition that Australia should not expose a person to the risk of torture in a country where they have in the past been tortured, this case, in my view, merits consideration by the Minister.  That is a matter beyond the scope of this proceeding.  The Court’s task is to deal with the grounds of review advanced in the amended application.

3. In relation to those grounds, I prefer the submissions of the Minister.

Ground one

1. The applicant's mere extraction of his claims from his statement in support of his protection visa application, and his citation of Minister for Immigration v WZAPN[41] indicates a misunderstanding of the judgment of the High Court.

   [41] [2015] HCA 22

2. The High Court in WZAPN confirmed that a Tribunal will not commit jurisdictional error in undertaking a qualitative assessment of whether a risk of the loss of liberty, for the purposes of s.91R(2)(a) of the Migration Act, constitutes serious harm for the purposes of s.91R(1)(b).[42] The High Court found error with the judgment of the Federal Court below (in the same way as the present applicant asserts regarding an accepted instance of harm), and rejected the argument that “any episode of harassment involving temporary detention invariably constitutes persecution for the purposes of the Convention” at [59].

   [42] The relevant provision of the Migration Act is now s.5J

3. The High Court stated at [45]:

   To resolve the question before the Court, it is enough to say, in light of the collocation of threats to life and liberty in s 91R(2)(a), that the question of whether a risk of the loss of liberty constitutes "serious harm" for the purposes of s 91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.

4. The High Court further summarised its conclusion at [71]:

   It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the Convention and s 91R of the Act are concerned to provide asylum. Both the Convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.

5. I accept the Minister’s submission that Ground one does not establish jurisdictional error.  In relation to the events in 2009, the Authority accepted that the applicant was detained for 10 days by the army or persons connected with the army on 26 November 2009 and mistreated. However, the Authority did not accept that the applicant was of ongoing interest to the authorities in connection with an adverse security profile when he left for Australia by boat in 2013.[43]  Further, at [36] the Authority found that there was not a real chance that the applicant would be detained, tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin or his previous experiences in Sri Lanka.

   [43] at [32]

Ground two

1. Ground two alleges that the Authority failed to discern that the applicant was suspected of LTTE support on the basis of the claims made in relation to the celebration of his mother's birthday. This ground in essence is seeking impermissible merits review.

2. In light of the Authority's finding at [32], where it found the applicant was “detained and severely mistreated by authorities on suspicion of celebrating Prabakaran's birthday, immediately after the war in November 2009, given the strong military presence, the government's fears of a resurgence of the LTTE and that the applicant was a young Tamil male in the north of Sri Lanka at that time” and its ultimate finding at [36], this ground must fail.  The Authority found the applicant was not of interest to the authorities and did not face a real chance of harm on this basis.

3. The Authority’s concluded at [32] that it did not accept that the applicant's reporting obligations extended into 2013; did not accept that the applicant was assaulted by authorities in 2013; did not accept that authorities visited his home in 2013; and did not accept that the applicant was of on-going interest to the authorities in connection with an adverse security profile when he left for Australia by boat in 2013.

Ground three

1. The Authority did not fail to consider the applicant's claim nor did it misunderstand the applicant's claim. It set out the applicant's claim at [10]. The Authority makes clear at [14] that it did not misunderstand the claim:

   The applicant claims that on 26 November 2009, while celebrating his mother's birthday at his place with friends, on the same day as that of the LTTE leader Prabakaran, he was taken into custody by the army and beaten and a hot thing was used to burn his back. As a result he suffered from a slipped disc in his lower back and neck. He was detained in Jaffna for 10 days. He was accused of celebrating Prabakaran's birthday and being in the LTTE.

2. The Authority then accepted this claim at [32], that he was detained and mistreated on suspicion of celebrating Prabakaran's birthday, “immediately after the war in November 2009, given the strong military presence, the government's fears of a resurgence of the LTTE and that the applicant was a young Tamil male in the north of Sri Lanka at that time”.

3. Contrary to the applicant's assertion, the Authority understood the applicant's claim and accepted it. 

Ground four

1. The applicant alleges that the Authority misunderstood the well-founded fear test, citing [36] of the Authority decision. The asserted misunderstanding is not evident on the face of the Authority decision.  It was open to the Authority to reach the conclusion that it did at [36], based on the findings that it made on the applicant's claims.

2. As outlined above, the Authority accepted at [32] that the applicant was detained and mistreated on suspicion of celebrating Prabakaran's birthday, “immediately after the war in November 2009, given the strong military presence, the government's fears of a resurgence of the LTTE and that the applicant was a young Tamil male in the north of Sri Lanka at that time”. This finding is captured by the finding at [36], that it accepted he was mistreated for reasons of his ethnicity. The Authority’s conclusions at [36] should not be read in isolation, but in the context of the Authority’s findings, including those made at [32].

Ground five

1. The applicant alleges again that the Authority misapplied the real chance test in respect of [35]. The Authority correctly applied the real chance test at [36], and did not disregard the chance of the applicant being tortured again as alleged. Rather it found that there was not a real chance that the applicant would be harmed on the basis of his ethnicity, origin or previous experiences.

2. The Authority identified that the victims of the feared torture were those “suspected”, and that the applicant did not fall into this category. At [35], the Authority states that:

   these incidents have generally been perpetrated by paramilitary groups and overwhelmingly, the victims were suspected of having some involvement in the resurgence of the LTTE or of bringing Sri Lanka into disrepute because, for example, they were an ex-LTTE member, had undergone 'rehabilitation' or had previously attended Tamil diaspora commemorative events, protests or election activities concerning the Tamil rights.

   (Minister’s emphasis retained)

3. It is not a misapplication of the real chance test to find no real chance of the feared harm in circumstances where others may well think differently, provided that the conclusion reached was open on the material.  As to that, see the discussion regarding Ground eight below.

Ground six

1. The applicant alleges that the Authority failed to discern that on return the applicant will be identified as a former supporter of the LTTE.

2. This ground is without merit. The Authority noted the applicant’s claim to fear harm on return to Sri Lanka as a result of being suspected of supporting the LTTE at [10]. The Authority found that there was not a real chance that the applicant would be harmed on return to Sri Lanka on the basis of his ethnicity, origin or previous experiences at [36]. Further, the Authority also found at [37], given that it did not accept that the applicant was of any ongoing interest to the authorities, that there was not a real chance that the applicant would be harmed on return by reason of his ethnicity, or origins, or because he would be a returning asylum seeker.

Ground seven

1. This Ground repeats Ground four and must fail for the reasons outlined above.

Ground eight

1. This ground was not addressed in the applicant’s amended submissions. In any event, there was material before the Authority upon which it was entitled to base its conclusions.  It may be conceded that the outcome appears harsh.  However, disagreement with the reasoning of the Authority, however strenuous, cannot establish legal unreasonableness.

Ground nine

1. This Ground also was not addressed it in the applicant’s amended submissions. In any event, it is unclear what the applicant is alleging by this ground and without further particulars, it must fail.

New Ground five within the submissions

Ground five

1. The applicant raises a new ground not in the amended application, for which, on a strict view, leave was required. I have nevertheless considered it. The applicant alleges that the Authority fell into jurisdictional error by misunderstanding the country information at [35]. The Minister contends, and I accept, that the Authority did not misunderstand the country information, and that this goes no higher than impermissible merits review. It was open to the Authority to come to its finding at [36], on the basis of the country information cited by the Authority.

Conclusion

1. The applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  19 March 2019