Azx21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2023] FedCFamC2G 1024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1024

File number(s): BRG 151 of 2021

Judgment of: JUDGE EGAN

Date of judgment: 23 October 2023

Catchwords: MIGRATION LAW – Whether Authority failed to consider all elements of the applicant’s claims – whether the Authority’s findings were illogical – whether the Authority failed to understand and consider the contents of country information reports referred to by the applicant – no jurisdictional error established – application dismissed

Legislation:
Migration Act 1956 (Cth) s 36.

Statutory Declarations Act 1959 (Cth) s 11.

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

CED15 v Minister for Immigration and Border Protection [2018] FCA 451

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v STZMA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Division: Division 2 General Federal Law

Number of paragraphs: 43

Date of last submission/s: 10 August 2023

Date of hearing: 10 August 2023

Place: Brisbane

Solicitor for the Applicant: Taylor & Associates

Counsel for the First Respondent: Mr B McGlade

Solicitor for the First Respondent Clayton Utz
ORDERS

BRG 151 OF 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AZX21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

9 NOVEMBER 2023

IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 19 April 2021 be dismissed.
2.The Applicant shall pay the First Respondent’s costs of and incidental to the Application for Review, with such costs to be agreed and, failing agreement, to be assessed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction

The applicant is a citizen of the Republic of Sri Lanka who arrived in Australia as an irregular maritime arrival in or about August 2012.
On 21 March 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV) (Class XE Sub-Class 790).
On 5 October 2016, a delegate of the Minister refused to grant the visa.
On 10 October 2016, the matter was referred to the Immigration Assessment Authority (“the Authority”) for its consideration and review.
On 20 April 2017, the Authority affirmed the delegate’s decision to refuse to grant to the applicant a protection visa. (The First Authority Decision)
On 2 February 2021, a Judge of the Federal Circuit Court of Australia quashed the decision of the Authority and remitted the matter for reconsideration by the Authority.
On 29 March 2021, the Authority again affirmed the decision of the delegate. (The Second Authority Decision)
On 19 April 2021, the Applicant filed in the registry of this Court an Originating Application for Review of the decision of the Authority.
GROUNDS OF REVIEW
At the hearing before the Court, leave was granted for the Applicant to rely upon the proposed Further Amended Application filed on 18 April 2023, together with affidavits of Mr Chelliah filed on 9 March 2023 and Mr Taylor filed on 12 March 2023.
The applicant was also granted leave to rely upon the affidavits of Mr Taylor, and annexures thereto, filed on 20 March 2023 and 14 April 2023 (the latter affidavit having been erroneously recorded by Mr Taylor as having been filed on 11 April 2023). It had been asserted on behalf of the applicant that material in the nature of country information which had been before the Authority had not been included in the Court Books filed in the proceeding. By the time of the hearing, that omission had been remedied.
The grounds of the Further Amended Application for Review were as follows:
“1AThe Authority impliedly finding that it was not satisfied that the applicant was in the LTTE controlled area in the last days of the war between February to April/May 2009, or otherwise declining to determine whether the Applicant was in the government controlled area or the LTTE controlled area in the last days of the war between February and May 2009, was affected by the failure to consider the Applicant’s oral claims made in the PV interview and further, constituted a failure to assess a critical integer of the applicant’s claims.
Particulars
i.The Authority found that it was not satisfied of, or, unreasonably declined [at 85] to make a finding in relation to, the Applicant’s claim made to the Delegate in the SHEV interview and to the IAA that he was in the war zone in the LTTE controlled area at Putumattalan/Mullivaikal in the last days of the war between February to April/May of 2009.
ii.By declining to make a finding in relation to the Applicant's claim made in the SHEV interview that he and his family fled from the war zone during the last days of the war, the Authority declined to assess where he was at the critical time, of his claims, thus prejudicing its assessment of his critical claims [at 83]: that he took part in combat operations - buried LTTE weapons - deserted from the LTTE, during the last days of the war. The Authority in undertaking the review was obliged to make a finding as to where the applicant was in the last period of the war.
iii.The Authority by declining to make a finding where the applicant was during the last period of the war failed to consider the pervasive practice of active forced recruitment of children by the LTTE in the last period of the war such as to be corroborative of his claims that he was already recruited by the LTTE prior to that time.
iv.The Authority failed to refer to or consider the oral claim in the SHEV interview, that he and his family fled from Mullaitivu to Jaffna in the last fight, last battle, in the last night before the Army captured the area under the control of the LTTE. [Chelliah Affidavit at 29-60].
v.The Authority made an error in respect of a jurisdictional fact in finding [at 20, 43, 61, 66] in finding that the claim that "he and his family departed the conflict zone during the last stages of the war" was a new claim;
vi.The Authority failed to refer the Applicant's claims against the Country Information with which his evidence to the Delegate corresponded, to establish that he was in the LTTE controlled area including in Putumattalan area at least until the time immediately before it fell to the Sri Lankan army on 20th April 2009.
[IAA Footnote 15 Richards, J. "An Institutional History of the LTTE", CCDP, November 2014, CISA447F082828, pp66-68: 17 May 2010 ICG report indicates at page 48 [incorrectly referred to by the IAA as p38; See also the OISL report from paragraphs 87 to 94 [pp19-21] and 835-852.
vii.The Authority failed to consider an essential integer of his claims that the only way he he managed to desert from the LTTE was because it was in the very last days of the war when it was disintegrating. The authority did not refer to the country information before it which indicated severe reprisals against those cadres who tried to desert [OISL report at paragraphs 65-655- pp131-132]
viii.The Authority failed to consider the Applicant's claim that he and his family managed to flee the LTTE controlled area was because it was in the last days of the war;
ix.In declining to make a finding as to when the Applicant fled the LTTE controlled area with his family by boat, it failed to refer to country information before it that escape from the LTTE controlled area in Mullaitivu/Putumattalan to Jaffna by boat was not even possible until at least April 2009. The Authority did not consider the evidence before it in the OISL report and the ICG report that until the LTTE collapse, it shot or otherwise prevented those who were trying to flee LTTE controlled area by sea or land. [ICG 2010 report referred to at footnote 6, at page 31and also footnote 118: OISL report at paragraphs 906-934 p179-193].
The Authority failed to consider critical integers of the claims made by the Applicant, and unreasonably rejected others, such that the decision of his claims of LTTE involvement, lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36-[40].
Particulars
1.The Authority did not assess the applicant’s claims, to have been trained in the use, dissembling and reassembling of the T56 rifle, or his first aid training for warfare, such evidence being essential integers of his claims.
a.   The Authority stated [at 72]
He said that he was trained in first aid and how to use and dissemble and assemble the AK t56 (most common weapon used by both sides was the T56 assault rifle, a Chinese copy of the Russian AK47) …
b.   In circumstances where the Authority went into intense detail concerning the applicant's understanding of the mine system, the failure to assess, and to accept or reject, the applicant's claims to be trained to use, dissemble and assemble the AK T56, was a failure to consider both critical claims and evidence, material to the outcome of the review.
c.   The Authority did not give any notice of concerns about the Applicant's claims about his training in the use, assembly and disassembly of the T56 rifle, and having been trained in combat first aid.
d.   To the extent that the Authority impliedly rejected the applicant's claims to be trained in the T56 rifle and first aid, no reasons were provided on that critical integer.
e.   The concerns put by the Respondent about the expected volunteering of a description of an SN96 weapons system were unreasonable.
f.    The Authority in expecting the applicant to provide details concerning the command structure of the Charles Antony Brigade and the specifics of the SN96, failed to take into consideration how the applicant’s age as a 15 year old child at the time of the relevant events and a claimed victim of torture could impact his capacity to give his evidence in the IAA interview.
g.   In assessing whether the Applicant was telling lies or instead simply unable to provide accurate information, the Authority's rejection of the applicant's reasons for his anomalous evidence, including that he was a survivor of child trauma taking part in warfare and witnessing the horrors at the end of the war and, a claimed victim of torture, was unreasonable.
h.   The finding at 111 that working with the Gramma Sevaka for a short period seriously undermined the applicant's claim that he had been involved with the LTTE was unreasonable.
2.The Authority in applying the “what if I am wrong test” in rejecting any risk of harm to the Applicant if his claims were true, made findings that lacked a logical basis and this was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36] – [40].
i.The Authority in finding [at 108-109] that the Sri Lankan authorities would not have an adverse interest in the applicant even if his claims were made out, misunderstood the meaning of “high profile” within the 2019 DFAT country information report by not considering the category of persons involved with the use of explosives during the war:
“3.71 … Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.”
ii. The Authority unreasonably misunderstood, misinterpreted, or misapplied 3.74 of the DFAT report in that it indicated that even low profile cadres who were involved in combat who came to the attention of the Authority now would likely be detained.
iii. To the extent that the Authority found [at 108-109] that the even if the Applicant's claims are true he would not face serious harm because of it, the finding that the Sri Lankan authorities are not looking for former cadres, this finding was not available to any reasonable decision maker having regard to the 2019 DFAT report at 3.74 indicating that those who came to the attention of the Authorities would "likely be detained".
iv. The Authority in finding [at 108-109] that the Applicant would not be punished because he would not come to the attention of the Sri Lankan authorities as an undisclosed and unrehabilitated former cadre because they are not looking for former cadres is directly contradicted by the DFAT report at 3.74 that those who came to the attention of the Authorities would "likely be detained".
v.The Authority did not purport to even implicitly reject the DFAT report such that the finding that the Sri Lankan authorities were not looking for former cadres lacked a logical basis and was contradicted by 3.74 of the DFAT report and other country evidence before the Authority.
Ground 1A was a claim that the Authority had failed to assess a critical integer of the applicant’s claims, and that it had failed to make a finding in relation to such claims, namely as to where the applicant was geographically located ‘during the last days of the war’. It was claimed that by declining to make a finding as to where the applicant was located in the last days of the war, the Authority had erred because, had it done so, it would have found that the applicant had already been recruited by the LTTE prior to such time.
It was claimed that the Authority had erred at [20], [43], [61] and [66] of its reasons in finding that the applicant’s claims that he and his family had departed the conflict zone during the last stages of the war was a new claim. It was further claimed that the Authority had erred when it failed to consider the applicant’s claim that he had only been able to desert from the LTTE because the war was at a near end, and because the LTTE organisation was disintegrating. There is no merit to such claims.
At [10] of the First Authority Decision, [1] the claims of the Applicant were relevantly recorded as follows:
[1] See Exhibit 1A – Court Book (CB) pp. 331 – 332
10. The applicant’s claims can be summarised as follows:
•The applicant is a Tamil from the Northern Province in Sri Lanka. Due to civil war conflict he and his family were displaced and stayed in an internally displaced persons' camp from February 2008 until released and able to return to the family home in October 2009. The applicant has provided a copy of his UN High Commissioner for Refugees Return Form.
•There was ongoing discrimination by the authorities who targeted and mistreated the Tamil population.
•In February 2012 the applicant met a young man through their connection with the local football club. They saw each other at the football club and went for drinks at a cafe on a few occasions.
•In March 2012 the Criminal Investigation Department (CID) came to his home and questioned him about his new teammate. The CID suspected this teammate of being a member of the LTTE. The applicant told the CID he did not know anything and a CID officer slapped him on the face.
•The applicant later spoke to this teammate who told him he had done four weeks training with the LTTE in the past. The applicant told him that he could no longer be associated with him as the applicant was concerned about repercussions for himself and his family.
•Two weeks later the applicant was again approached by the CID and taken to their office for questioning; he was stripped naked and beaten. He told the CID that his teammate had undertaken LTTE training. Two weeks after this incident he was again taken by the CID, stripped naked, questioned and beaten. At both his SHEV interviews the applicant showed the delegate a medical report from a hospital he attended for treatment of injuries he sustained from the beating.
•In April 2012 his teammate went missing. His teammate’s mother came to the applicant’s home to ask if he had seen him. The teammate’s parents reported his disappearance to human rights agencies.
•In May 2012 the CID again questioned the applicant, stripped him naked and beat him. After this the applicant stayed with a friend to avoid the CID.
•In June 2012 the CID came to his home and because the applicant was not there they threatened his father. The applicant went to the CID office the next day where he was questioned and mistreated. After he was released he went into hiding and decided to leave Sri Lanka. He was concerned about further harm to his father who had a heart condition. He departed Sri Lanka in August 2012.
•In October 2012 the CID came to the family home in search of him. They took his father and beat him; his father required hospital care for his injuries. The family have since relocated to Mannar. The family are living in a hut in the forest and farming the land because the family’s brick house in the village has been occupied by the navy since 2007. At his SHEV interview conducted on 12 May 2016, the applicant showed the delegate a letter from a Reverend referring to the property seizure by the navy.
•In a post-interview submission the applicant’s representative drew attention to country information reporting discrimination in areas of education, employment and access to justice and the “Sinhalization” of Tamil areas.
•On return to Sri Lanka he will be harmed or mistreated because of an imputed political opinion and as being pro-LTTE due to his association with his teammate who was suspected of being an LTTE member and the fact that he has remained in Australia, a Tamil diaspora nation for a significant period of time indicates that he will continue to be of interest to the Sri Lankan authorities. He fears the authorities will assume he ran away from Sri Lanka because he knows something about his teammate. He also fears he will be harmed or mistreated for reasons of his membership of the particular social groups; failed Tamil asylum seeker for having fled Sri Lanka illegally, and young Tamil male from the Northern Province of Sri Lanka.
Such recorded claims of the applicant were consistent with the personal details as set out by the applicant in his application for a Safe Haven Enterprise Visa signed by him on 18 March 2016. [2] At the time, the applicant was represented by lawyers named Fragomen. [3]
[2] See Exhibit 1A - CB 133 - 165
[3] See Exhibit 1A – CB 113
It is of particular note that in answer to question numbered 81 of the SHEV application form, under the heading ‘Previous Addresses’, it was recorded that the places where the applicant had lived over time were as follows:

Date from Date to Full residential address (including house number, street name, suburb, town/city, state/province, postcode). Do NOT provide a PO Box Country

Month Year Month Year

/ CURRENT Please refer to attachment Sri Lanka

Oct-2009 Jan-2010 Thalluvpadu, Mannar District, Northern Province Sri Lanka

Feb 2008 Oct-2009 Kodikaman Navaly Refugee Camp, Jaffna District, Northern Province Sri Lanka

Aug-2007 Feb-2008 Pudumathaman, Mullaitivu District, Northern Province Sri Lanka

Jul-2007 Aug-2007 Pokanai, Mullaitivu District, Northern Province Sri Lanka

May-2007 Jun-2007 Iranacallai, Mullaitivu District, Northern Province Sri Lanka

Apr-2007 May-2007 Puthukkudiyiruppu, Mullaitivu District, Northern Province Sri Lanka

Feb-2007 Apr-2007 Vallaiyar Madden, Mullaitivu District, Northern Province Sri Lanka

2004 Feb-2007 Kallaiparri South, Mullaitivu District, Northern Province Sri Lanka

2003 2004 Vannarkulam, Mullaitivu District, Northern Province Sri Lanka

Jul-1993 2003 Marichikaci, Mulikulam, Mannar District, Northern Province, Sri Lanka

It is of further note that in the applicant’s statutory declaration of the 18 March 2016, which declaration accompanied the SHEV visa application sent to the Department by Fragomen Lawyers, no mention was made of the applicant having allegedly been recruited into the LTTE as a child soldier prior to the end of the war in Sri Lanka in or about May 2009. The applicant’s statutory declaration at [4] – [40] relevantly provided as follows: [4]
[4]           See Exhibit 1A – CB 159-165
WHY I LEFT THAT COUNTRY, HARM EXPERIENCED AND WHO CAUSED IT
4.       Life for my family and I in Sri Lanka has always been very difficult because of our ethnicity. Growing up in Sri Lanka I was subject to ongoing discrimination because I am an ethnic Tamil and because I am from the Northern Province of Sri Lanka, which was formerly controlled by the Liberation Tigers of Tamil Eelam ("LTTE").
5.       I have always lived in fear of the authorities, who target Tamils in Sri Lanka. The Sri Lankan authorities are notorious amongst ethnic Tamils for abducting people, interrogating them, detaining them, torturing them and carrying out extra judicial killings.
6.       When I was a child growing up in wartime Sri Lanka my family was displaced and forced to move many times.
2-Feb-2008 to 20-0ct-2009: My family and I relocated to a refugee camp
7.       On or around 2 February 2008 my family and I were forced to relocate to a refugee camp. Various organisations including the UNHCR provided us assistance. Annexed hereto and marked C is a copy of the UNHCR Return Form.
8.       When my family and I were released on or around 20 October 2009, we were provided with a letter from the Sri Lankan authorities. Annexed hereto and marked D is a copy of the letter provided by the Sri Lankan authorities.
9.       Since the end of the war in May 2009 the situation for Tamils and particularly those in the Northern Province have not improved. The area remains under the control of the Sri Lankan military. The Sri Lankan government was paranoid about a resurgence of the LTTE and all young Tamil men are suspected of either being involved with or sympathising with the LTTE.
Feb-2012: I met Anthony BALASHANDRAN while I was playing football
10.      My personal troubles began in early 2012. At the time I was playing football for the local Mullaitivu District Football Team. In or around February 2012 a new guy names Anthony BALASHANDRAN (Anthony) joined our team. He was a year older than me and seemed like a nice person. I was friendly with him but we were not particularly close friends -more like teammates.
Mar-2012: I was questioned by the CID
11.     In or around March 2012, about one month after Anthony joined the team, I had two officers from the Criminal Investigations Department (CID) come to my home and question me about Anthony. They asked me whether Anthony was involved with the LTTE. I told them I had no idea and that he was just person I played football with. One of the CID officers slapped my face and told me I was lying. I told him I honestly didn't know anything about Anthony's past or background, but he did not believe me. Eventually the CID officers left but told me they would be coming back.
Mar-2012: I confronted Anthony about his LTTE involvement
12.     The following day I went to football training and confronted Anthony. I told him he must tell me the truth about his involvement with the LTTE. Initially he refused to tell me anything and denied having any involvement. I was very upset because I felt he was lying to me.
13.     The next day Anthony confessed to me that he had previously been forced to undertake 4 weeks of training with the LTTE but that he had no further involvement. After his confession, I told him I could have nothing to do with him. I explained that if CID thought we are connected, my family will be in danger. From that point I cut all contact with Anthony and rarely attended football training.
Mar-2012: I was questioned and beaten by the CID
14.     Approximately two weeks later, the same CID officers attended my residence. They informed me that I was required to go with them on their motorbike to the local CID office, which operated from a house in Mullaitivu. When we arrived, two different CID officers took me into a room. They closed the door and told me to take off all my clothes. When I refused they started hitting me.
15.     Eventually I gave in and removed my clothes. They then started interrogating me about Anthony and about my association with him. They asked me about his position with the LTTE and what I knew about the LTTE. I told them I only knew Anthony had been forced to do some training but that was all. The CID officers were dissatisfied with my answers and started beating me with a swatch made out of burnt palm leaves. It was sharp and made bug welts across my body. It was extremely painful. The interrogation lasted for about two hours. By the end I was bruised and bleeding. I went home and my mother cried and treated my wounds.
Mar-2012: I was questioned and beaten by the CID
16.      Approximately two weeks later, the same CID officers arrived at my house. My mother lied and told them I wasn't home. However, the CID officers pushed her out of the way and then charged into the house to find me. My mother hurt herself as she was pushed to the ground by the CID officers.
17.      The CID officers grabbed me and forced me to come with them to the CID office. Once again I was taken to the interrogation room, ordered to remove my clothes and asked the same questions about Anthony and the LTTE. When I couldn't give them any more information they beat me.
Apr-2012: Anthony went missing
18.     In or around April 2012 Anthony's mother came to visit me at my home. She told me Anthony was missing and she had searched everywhere for him. She wanted to know if I had seen him. I told her I had no idea where he was.
19.     No one has seen or heard from Anthony him since that time. His parents have made inquiries with all the Human Rights organisations but no one knows what has happened to him.
May-2012: I was questioned and beaten by the CID
20.    In or around May 2012 several weeks after Anthony went missing, the CID once again took me from my home. I was taken to the CID office, led to the room, forced to remove my clothes and interrogated and beaten. They continued to interrogate me about the LTTE, my relationship with Anthony and Anthony's involvement with the LTTE. I never had anything new to tell them but they were convinced I was lying and beat me.
May-2012: I went into hiding
21.     After that I started spending most of my time hiding out at my friends' houses because I was afraid to go home.
Jun-2012: CID threaten my father
22.     On one occasion in around June 2012 the CID came looking for me at the house. When they couldn't find me they threatened my father and told him that if I was not home next time they came looking for me then his life would be in danger.
Jun-2012: I returned home and reported to the CID office
23.     The following day I returned back home and reported to the CID office as I did not want the CID to harm my father. Once again, the CID took into a room, interrogated me before they beat me. When I was released a few hours later, I went back into hiding.
24.     As my father has a heart condition I realised that there was no way I could continue to hide. I was fearful that the CID continuously harassing my father would result in his health deteriorating. It became clear to me I needed to leave the country.
Aug-2012: I departed Sri Lanka
25.     I made inquiries about how to escape Sri Lanka and heard about Australia as an option. A friend lent me the money to pay for the journey and I departed for Australia by boat in or around August 2012.
Oct-2012: CID inquire about my whereabouts
26.     In or around October 2012, when I was in detention in Australia, I received a phone call from my mother. She was very upset and told me that the CID had been back looking for me. She told me that when they could not find me they had taken my father into the CID office and interrogated him. She told me that my father had been beaten all over his body and was covered in bruises. Because of his heart condition, the stress of the incident had taken a toll on his health and he was admitted to hospital for four days.
27.     My mother informed me that my father had relocated to Mannar where his mother was residing. My mother informed me that the she and the rest of my family were also going to relocate there as they could no longer handle the constant harassment. My mother stated that my paternal grandmother's home had been taken over by the Navy and so they are forced to live in a nearby forest.
28.     I am very scared that if I am forced to return to Sri Lanka I will be harmed.
29.     I am also frightened that if I am forced to return to Sri Lanka the authorities will have further cause to suspect me of being part of the LTTE because I have left the country unlawfully.
HELP I SOUGHT
30.     I was unable to seek help from the authorities, as they have previously detained and harmed me.
ATTEMPTS TO RELOCATE
31.     I have attempted to relocate to my friend's home. However the CID continued to inquire about my whereabouts as well as harass and harm my family.
WHAT I FEAR WILL HAPPEN IF I RETURN TO THAT COUNTRY, HARM OR MISTREATMENT I FEAR
32.     I fear I will be arrested, detained, beaten, tortured and/or killed.
WHO WILL HARM/ MISTREAT ME
33.     I fear I will be harmed and / or mistreated by the Sri Lankan authorities, specifically the Army, Police and the CID.
WHY I WILL BE HARMED/ MISTREATED
34.     I will be harmed and/ or mistreated for reasons of my race: I am Tamil.
35.     I will be harmed and / or mistreated for reasons of my imputed political opinion: I have been imputed as an LTTE supporter due to my association with Anthony.
36.     I will be harmed and / or mistreated for reasons of my membership to the particular social groups:
a.        Failed Tamil Asylum seekers; and
b.        Young Tamil men from the Northern Province of Sri Lanka.
37.     I also fear the above harms will amount to significant harm. In particular, I fear that I will be detained at the airport upon my arrival in Sri Lanka. I have a higher likelihood of being detained for a significant period of time given my past record with the authorities. I fear that this will cause the Sri Lankan authorities to detain me for a greater than average period of time before they release me (if at all). I believe any contact with the Sri Lankan detention system will amount to significant harm.
WHY THE COUNTRY'S AUTHORITIES WILL NOT PROTECT ME
38.     I fear the authorities - they will not protect me. They do not protect Tamils and are responsible for persecuting me.
WHY I AM UNABLE TO RELOCATE
39.     I am unable to relocate to another area of Sri Lanka as the Sri Lankan authorities have complete control of the country and I would be required to register with the Grama Sevaka of any area I relocate to. Accordingly, the Sri Lankan authorities will always be able to find my whereabouts.
40.     It would be unreasonable for me to relocate as the only place I could go to is my paternal grandmother's home. However, her home has been taken over by the Navy and I would be forced to live in the forest along with the rest of my family members. Annexed hereto and marked E are photos of the forest area that my family are currently living in.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s 11 of the Statutory Declarations Act 1959 (Cth), and I believe that the statements in this declaration are true in every particular.
The applicant’s lack of detail about his alleged recruitment into the LTTE in his early recorded visa application and statutory declaration was consistent with the answers the applicant gave in his entry interview [5] conducted on 9 January 2013, and largely consistent with his protection visa interview conducted on 31 May 2016. [6]
In the entry interview, in answer to Question 14, [7] the applicant confirmed that he and his family were displaced in 2008 – 2010 and that they had moved to the Koddikanam refugee camp in Jaffna, staying there for about two years until 2010. That was inconsistent with the applicant having deserted from the LTTE in the last days of a war which ended in April/May 2009. It was also inconsistent with the address details as set out in answer to Question 81 in Part C of the application for a Safe Haven Enterprise Visa Form completed by the applicant which recorded that the applicant had stayed at the Kodd ikaman Refugee Camp until at least October 2009, which was well adter the end of the war. [8]
[5]           See pp. 12-18 inclusive of Annexure JC-1 to the affidavit of Joshua Chelliah filed on 9 March 2023
[6]           See pp. 1-11 inclusive of Annexure JC-1
[7]           Court Book Exhibit 3 at p. 853
[8]           See Exhibit 1A CB at p. 147
In the protection visa interview conducted on 31 May 2016, in only one respect did the applicant seem to assert that he had been displaced ‘during the last fight, last battle’, but he went on to say that he and his family had been displaced a number of times during that last fight. No specific time as to when the last fight or last battle occurred was specified. Neither was the date of the day ‘before the last night, or the night before the army had captured the area that the LTTE had control of’ (before his allegedly escaping to Jaffna) ever specified. The statements of the applicant referring to the last fight or last battle were equivocal. The relevant passage relied upon by the applicant was in the transcript of the protection interview [9] on p. 3 at .41-.51 and was as follows:
Interpreter:       [translates Case officer], [clarifies with the Applicant in Tamil] So, he said, my Mullaitivu, they asked, you know, what is the relationship, that it’s where I’m from. And Mullaitivu, Jaffna is very close to Mullaitivu. We went through sea.
Case officer:     Sorry, what do you mean by that? You?
Interpreter:      He said [Applicant interjects in Tamil]. So, during the last fight, last battle, we had been displaced a number of times. We lived for short periods in different times, different places. And, to the, before the last night, or the night before the army had captured the area that the LTTE had control of, we managed to escape, and escape to Jaffna, to that camp. By sea, that’s what I meant.
[9]           Annexure JC-1 to the affidavit of Joshua Chelliah filed on 9 March 2023
At other parts of the protection visa interview, the applicant gave clear answers to the effect that from February 2008 until October 2009 he and his family were forced to relocate to the Kodikaman refugee camp, that being consistent with answers given in [81] of the SHEV visa application signed by the applicant on 18 March 2016, and in his subsequent statutory declaration. At p. 2 of the protection visa interview at .29 - .38, the applicant gave the following answers:
Case officer:     Okay. You state that, from February 2008 to October 2009, that you were forced to move many times growing up. And that in that period, you were forced to relocate to a refugee camp? [00:34:30]
Applicant: Yes [responds to Case officer in English]. Interpreter [responds to Interpreter in English]?
Interpreter:      [translates Case officer]
Applicant:       Yes [responds to Case officer in English].
Case officer:     Yes? Which refugee camp? Did you just live in one refugee camp for that period?
Interpreter:      Just one. The one in Kodikamam, Navaly camp, in Jaffna.
At p. 4 of that transcript at .62 - .75 the applicant provided answers as follows:
Case officer:     So, I accept that you and your family were displaced and forced to live in a refugee camp from 2008 to 2009.
Interpreter:       [translates Case officer]
Case officer:     Okay so, let’s now talk about when you were released from the camp. Where did you were released from the camp. Where did you go back after 2009? Did you go back to your home village? Your hometown?
Interpreter:      He says, after I was released from the camp, there was, the resettlement hasn’t begun in Mullaitivu [translates Applicant in English}. I can ask what, what is, how is Mullaitivu relevant to this [responds to Case officer in English]?
Case officer:     Well, that was his, was Mullaitivu your hometown?
Interpreter:      So, you know that [responds to Case officer in English]?
Case officer:     Yes [responds to Case officer].
Interpreter:      Yes, that’s where we used to live, and we ended up in the camp from there.
Case officer:     Yes, yes.
The Authority, in the Second Authority Decision, adverted to the fact that it had received the applicant’s 16 February 2021 statutory declaration from the applicant’s newly appointed migration representatives, as well as a 4 March 2021 statutory declaration, and that such statutory declarations raised a raft of new claims not earlier specifically raised by the applicant or the applicant’s representatives. Those new claims, as set out in the reasons of the Authority, included the following:
10. For example, some of the new claims the Applicant made before the IAA were that:
(a) the Applicant’s father was involved in the LTTE;
(b) the Applicant had known Mr A for about 4-5 years;
(c) Mr A had been in the LTTE for about two years and had been missing since 2012 (and was, presumably, dead);
(d) on 29 April 2008 the Applicant was forcibly recruited into the LTTE and underwent training for three months with Mr A;
(e) after that training, the Applicant and Mr A served with the LTTE for a number of months – such involvement which included the hiding LTTE weapons,
(f) towards the end of the war the Applicant and Mr A escaped from the LTTE; and
(g) the CID (when they interrogated, beat and tortured the Applicant) identified that they were aware that he was in the LTTE. (He also claimed that he came to the interest of the CID in first half of 2011 and went into hiding after this).
The Authority found that there were factual discrepancies and contradictions between the applicant’s earlier claims and the later claims. It referred to a further statutory declaration, dated 17 March 2021, which claimed that the applicant had only escaped from the LTTE a few weeks before the end of the war. The Authority dealt with those discrepancies at [51]-[58] of its reasons, and further analysed what it considered to be the new claims at [59] – [72] of its reasons as follows:
59. Notwithstanding the extent to which these new claims are at odds with his previous evidence, it was nonetheless submitted to the IAA that he continued to rely upon all information that had been submitted previously.
60. The applicant’s new claims to the IAA raised a number of initial concerns. First, and as I have already discussed above, the applicant’s claim to have withheld his true circumstances and those of his father (and those of other relatives such as his father’s older brother’s daughter) for fear these would be disclosed to the Sri Lankan authorities, is not persuasive given that the applicant was willing to trust the Department with his claim that he was wanted by the CID on suspicion of having knowledge about a person with LTTE involvement. His claim to have withheld the truth of his history for fear of an adverse reaction from the Australian authorities, and on the basis of the advice of friends, also seems doubtful given that from very early after his arrival in Australia he had the advice of a migration agent from a reputable firm, and given that what he now claims is his true history amounts to his having been forced to fight for the LTTE for less than a year, and without any apparent incidents involving attacks upon civilians or any other such serious abuses, and with his deserting the LTTE when the opportunity arose. None of this would, furthermore, explain why he would not have told the Department various details that his father had been a hunter (and not just a fisherman and a farmer).
61. Further, the applicant’s new claims submit that he and his family departed the conflict zone during the last stages of the war, and I note that the conflict ended in May 2009 and that the applicant’s new claims have him forcibly recruited on 29 April 2008, followed by three months of training, and the an unspecified period of time at various locations before he together with his family departed the LTTE controlled zone via boat from Putumattalan. This would mean that the applicant and his family could not have departed the zone any earlier than September 2008. It has always been the applicant’s claim that he and his family departed the LTTE controlled zone together and by boat from Putumattalan. But to the Department the applicant claimed that this occurred in February 2008, and it is not at all apparent why the applicant would have had any reason to claim to the Department that he and his family had all left the zone in February 2008 if they were in fact still in the LTTE controlled zone on 29 April 2008 (the day on which the applicant now claims he was forcibly recruited into the LTTE) and well beyond this, if this was not actually the case.
62. I note also the applicant’s new claims submit that his troubles with the CID in Mullaitivu began in the first half of 2011, whereas to the delegate the applicant claimed that his troubles with the CID in Mallaitivu began in the first half of 2012. Again, it is not apparent why the applicant would have had any reason not to claim to the delegate that his troubles with the CID in Mullaitivu began in the first half of 2011 if in fact this was the case. I note also the applicant’s new claims involve a timeline where, following the April 2011 incident where the applicant and Mr A are stopped by the CID, there is a CID encounter after two weeks, and then another after three weeks, and then another after two weeks, and then the applicant is in Mannar for a month, and then he returns to Mullaitivu and is told the authorities were looking for him and hides for a few days at a relatives home, and then learns about people going to Australia, and then goes to Australia. This appears to suggest that the applicant departed for Australia in around July 2011. This, however, seems extremely doubtful since the applicant did not arrive in Australia until 27 August 2012 (and if nothing else, this arrival date trongly suggests that the applicant was telling the truth when he said that he departed for Australia by boat on 10 August 2012). The alternative interpretation of the applicant’s new claims is that he is simply remaining silent about what he did and where he went over the year which followed the few days he hid at a relative’s home, until his 10 August 2012 departure. Yet, if so, it was not at all apparent where the applicant had been or how he been able to avoid the authorities over such a period if they were in search of him.
63. Further, to the delegate the applicant had initially claimed that following his 10 August 2012 departure his father was harmed by the CID and had moved to Mannar in around October 2012. Then at the 31 May 2016 SHEV interview he had claimed that his father had been harmed by the CID and had moved to Mannar prior to his (the applicant’s) departure, and had then returned to Mullaitivu (to move some boats) when he was harmed by the CID again (the October 2012 incident). The applicant’s new claims to the IAA gave no indication that the applicant was disavowing the claims he had made to the delegate regarding what had occurred to his father, and when his father and family had moved to Mannar and the reason for this (fear of harassment from the CID), yet it is not at all clear how such claims are to be reconciled with the applicant’s new claims in which his own final encounter with the authorities appears to occur in around June 2011, and in which the applicant makes no express mention of any harm coming to his father.
64. I interviewed the applicant on 12 March 2012. I asked the applicant how it was that he knew his father was involved with the LTTE. The applicant said that he would observe his father going and coming back, and he was aware of LTTE members coming and meeting his father. The applicant repeated his claim that his father directed the LTTE through the jungle when they went to do fighting, and that his father provided a boat engine to the movement to transport and import weapons. I asked the applicant how he knew this. He said he would hear his father having a conversation about these matters, and that the LTTE would come to see his father about such matters. I asked the applicant whether during this time Mullikulam was under the control of the Sri Lankan government or the LTTE. He said it was under LTTE control. I accept that it is perhaps possible that a person who worked as a guide for the LTTE, and who assisted in moving weapons for them by boat, might have kept such an association secret even if he was residing in an LTTE controlled area (as opposed to a Sri Lankan government controlled area where such activities could only have been conducted in secret); and I accept that is perhaps possible that the child of such a person have picked up from overheard conversations, and the appearance of the LTTE at the family home, not only that his father was involved with the LTTE but also details such as that his father was leading the LTTE through the secret paths in the jungle (and that his father was given a cyanide capsule and uniform when he did this), and that his father also secretly used his fishing boat to transport weapons for the LTTE. Even so, have not find the applicant’s evidence about this matter compelling, and it has not offset my doubts about these new claims.
65.I asked him about where he had lived after his birth. He said he had lived in Mullikulam from birth until end of 2004 or in 2005. I asked the applicant is he was absolutely sure of this and he said he was. I put it to the applicant that in previous evidence including at his arrival/entry interview, and in his 2013 invalid PV application, and to the delegate, he had indicated that he had lived in Mullikulam until 2003. The applicant now submitted that he was in Mullikulam in 2003 and that they then went to his mother’s town in Mullaitivu, but that until 2005 they would still come back to Mullikulam. I asked the applicant if he had attended school in Mullikulam, and he said that he had beginning when he was 6 years of age and continuing until around grade 7. I asked the applicant if this meant he had seven years of school in Mullikulam. He said this was correct. This would mean that the applicant attended school in Mullikulam from 1999 until around 2005, such that (if true) it seems unlikely that the applicant and his family were only visiting Mullikulam after 2003 while being based in Mullaitivu. I note also that in his previous evidence to the Department the applicant indicated (in a manner at odds with his claim to have departed Mullikulam after 2003) that he attended a primary school in Mullikulam up to 2004. I note also that this would mean that the applicant and his family would appear to have moved from Mullikulam just after the December 2004 Tsunami, which seems more than a coincidence.
66. I asked the applicant if he lived anywhere between living in Mullikulam and Mullaitivu. He said that he did not. I asked if he went to school in Mullaitivu and he said that he attend school there until 2008. I asked why his schooling ended in 2008 and he said that this was because the LTTE captured him. I asked where he was living at that time and he said that he was living in Kallappudu South in Mullaitivu. I asked the applicant is he had lived in Kallappudu South over for the entire time since he had moved from Mullikulam. He said that he had. I put it to the applicant that in previous evidence including at his arrival/entry interview, and in his 2013 invalid PV application, and to the delegate, he had indicated that he had lived at different locations in different locations in the north of Sri Lanka over 2007 and 2008. The applicant said that what he had meant there was that after 2008 due to the ongoing battles he had been displaced from place to place, and this was what he had referred to. I asked the applicant whether he was displaced or not? He said that he was. I asked him to explain how it was that he was still in Kallappudu South in 2008. The applicant said that the movement got hold oh him and subsequently his family were displaced. Thus, the now claimed that his family were not displaced until after April 2008 (when he claims he was forcibly recruited by the LTTE).
67.Following the IAA interview the applicant submitted (in a 17 March 2021 statutory declaration) he only escaped from the LTTE a few weeks before the end of the war, and that it was his parents who were displaced and came up to Putumattalan, where he met them, and that in his SHEV application he gave his parents’ addresses as his own because he did not want to state that he was in the LTTE. I note, however, that the different addresses the applicant provided previously with regard to 2007 and early 2008, cannot be explained as references to places where his parents were displaced after he was abducted by the LTTE, since he claims to have been abducted by the LTTE on 29 April 2008.
68.At the IAA interview I asked the applicant about his claim to have buried weapons. He said that he did this in Mullivaikkal and he knew exactly where the spot was because there was a huge tree there. I put it to the applicant that in his 16 February 2021 statement that he had buried weapons in Putumattalan. The applicant responded that all these villages are close to each other, and that it comes under both areas in Mullivaikkal and that in those days these areas were not demarcated or divided and that this had only happened after the war. I put it to the applicant that from a map¹¹ these were distinct townships, and with distinct townships in between them. The applicant said that these were all small villages he was familiar with. I asked the applicant where he was when he escaped from the LTTE and he said that he was in Putumattalan. I put it to the applicant that in his 16 February 2021 statement that he was in Valayanmadam. He said that these places were very close together. I put to him that this was true but they nonetheless seemed to be distinct places from a map.¹² It has subsequently been submitted that it should be taken into consideration that at the end of the war there were subdivisions but it was not considered to be like that, and there were tents everywhere such that there were no borders that separated one part of Mulivaikkal from the other. I accept that at the end of the war there were masses of people and tents crowded into these locations. I also note that the name of the Mulivaikkal (or Mullivaykkal) township can also be used as means of referring to its surrounding area, including nearby places like Putumattalan.¹³ But this does little to account for the applicant’s inconsistencies given that the applicant was claiming to know exactly where he was; and I note that at one point in the IAA interview I asked the applicant if (when he referred me to Mullivaikkal) he was referring me to Vellmullivaikkal (also known as Mullivaikkal East, and which is the location into which the LTTE was squeezed in the last days of the conflict)¹⁴ and he stated that he meant Mulivaikkal specifically (indicating that at the IAA interview he used Mulivaikkal to refer to the specific township rather than the wider area). I have not found the applicant’s evidence about this matter persuasive.
69. I asked the applicant about the persons who he claimed to have buried weapons with and he said that Kumaran was in charge of this and that he (the applicant) and Mr A and two others were in charge, but he did not know the names of these two others. I asked the applicant if the two others would have known his name and the applicant said that they would likely only have known the name given to him by the LTTE, but that Kumaran and Mr A knew his name. He said that he did not know what had happened to Kumran but the applicant and Mr A and one other fighter escaped that night because there was no surveillance, and he did not know where this other fighter went. The applicant claimed that he had been told by friends in Sri Lanka that people who fought with him in the LTTE were now working for the CID and army, and that he believed they had given information about him to the CID such that the summonses had been issued directing him to report to the fourth floor of the CID. He said that he had been told by friends that so-and-so was now working for the CID and army on salary. I asked who these friends were who told him these things. The applicant said that a lot off them told him this. I asked again who the friends were. He said they were person who studied with him but their names did not come to his mind. I asked the applicant how these persons knew these persons had served with him in the LTTE. He said that everyone in his village knew who had been in the LTTE. I asked the applicant how friends in Mullaitivu would know who it was who had been in the LTTE who had served with him. The applicant insisted that he knew this information had been given because of the summonses.
70. I accept that it is plausible that in an area like Mullaitivu that residents would be largely aware of which local residents had volunteered or been compelled to go off and fight with the LTTE. But what the applicant has sought to claim is that he has been told is that persons who fought with him in the LTTE are known to be working for the CID and the SLA, and it is not at all apparent how the applicant’s friends in Sri Lanka would be aware of this, nor did the applicant provide an explanation for how this could be, and his claim to be unable to recall the names of any of the many persons who had given him this advice suggest that he has been told no such thing. I note also that the only person the applicant has identified as being known to him from Mullaitivu who he fought with in the LTTE was Mr A. I have not found the applicant evidence about these matters persuasive.
71. The applicant claims that after he escaped from the LTTE he went and stayed with his aunt in Iranaipalai. At the IAA interview the applicant said that he said he stayed with his aunty for three weeks in around the end of 2008 (though as noted above the applicant subsequently submitted to the IAA that he did not escape from the LTTE until a few weeks before the end of the war, that is, in May 2009), and that it was a place where could hide without attracting suspicion because his aunt’s husband was a senior figure in the LTTE who had held a rank close to colonel who had died at the end of the war but whose body was not found. I note that persons with rank of colonel in the LTTE were prominent figures.¹⁵ I asked for this person’s name. The applicant said he could not remember because he did not see him frequently. Asked why he had not previously given this information he said he had withheld information out of fear that it would be disclosed to the Sri Lankan authorities, and it might create difficulties for his aunt’s family from the CID. I find it doubtful that the Sri Lankan government would be unaware of the personal circumstances of a prominent figure with a rank like colonel, or that the applicant was afraid of the Department’s disclosing information to the Sri Lankan authorities given that he claimed to the Department that he was himself wanted by the CID as someone who had knowledge about a person with LTTE involvement. I also find it difficult to believe that the applicant would not know the name of such a person (even if he had little personal contact with this person) if the applicant had been the applicant’s uncle.
72.At the IAA interview the applicant gave evidence consistent with his 16 February 2021 statutory declaration about the manner in which he was abducted by the LTTE into forced recruitment, thought he now claimed that his training lasted one to two months rather than three months. He said that he was trained in first aid and how to use and dissemble and assemble the AK T56 (most common weapon used by both sides was the T56 assault rifle, a Chinese copy of the Russian AK47).¹⁶ I asked the applicant if he was trained in any other weapon systems. He said that he was not.

At [76] of its reasons, the Authority made adverse findings against the applicant based upon a careful consideration of the evidence before it. At [85] and [111] of its reasons, the Authority made specific adverse findings as follows:
85. On the evidence before me I accept that the applicant lived from birth in the then LTTE controlled area of Mullikulam in Mannar District, and that in late 2004 to 2005 he and his family moved to Mullaitivu (also then under LTTE control), and that over December 2008 to January 2009 the applicant was with his family in the LTTE controlled zone in Putumattalan, and that he was treated for a shoulder injury at Janna surgery in July 2009, and that he and his family were subsequently in Geewanagar IDP camp in Mannar in October 2009, and that they were allowed to return to Mullaitivu as early as 7 January 2011. But given the absence of any documentary evidence of the applicant’s being held at an IDP centre (refugee camp) in Jaffna District, I am not satisfied that he was held in such a location or that his shoulder injury was the result of his being assaulted by an SLA solider in this regard.
…
111.As has been noted above, I consider that serious doubts are raised about the applicant’s claims to himself have had problems with the Sri Lankan authorities, and that his father and other relations were involved with the LTTE. These serious doubts are raised, firstly, by his inconsistent evidence about these matters. Further, I consider that the applicant was working as a fisherman for various persons up to 3 August 2012, and that the he was working at the Grama Sevaka office between June 2012 and 27 July 2012, and I consider that this, and also his attendance of various sports events during 2011, seriously undermines his claim to have had problems with, and to have been wanted by the Sri Lankan authorities, prior to his departure (whether because of an association with a Mr A and/or in terms of his being himself involved in the LTTE). With regard to his being employed by the Grama Sevaka office I consider that this seriously undermines the applicant’s claim that he was involved in the LTTE. I have not found the applicant’s explanations with regard to these various concerns persuasive, nor have I found persuasive in itself his evidence about these matters. I am not satisfied, and I do not accept any of these claims.
It was open to the Authority to find that the statements of the Applicant to the effect that he and his family were living in a refugee camp between 2 February 2008 and October 2009 were correct, rather than the Applicant’s later claims that the applicant deserted from the LTTE only days before the end of the war in April/May 2009. The conclusions reached by the Authority were open on the evidence before it. As Thawley J said at [21]-[24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
[23] “It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
The Court finds that the Authority clearly engaged with all integers of the applicant’s claims, but rejected the later claims, as it was entitled to do, based upon the inconsistencies between the earlier claims as made, and the later claims as referred to above. [10] It did so in a detailed and considered way. It did not accept the applicant’s claims that he was a child soldier for the LTTE who deserted in the last days of the war.
[10] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58],
It has long been held that different minds might legitimately reach different conclusions on the same or similar facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
131. “What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
66. “This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.”
…
76. “As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Even if it be found that the Authority did not intellectually engage with all integers of the applicant’s claims, any such error would be immaterial in any event on the basis that such error could not have realistically resulted in the Authority arriving at a different conclusion. The Authority properly relied upon country information which demonstrated that even if the applicant’s claims were factual concerning his alleged membership of the LTTE as a child soldier, such facts would not have given rise to the Sri Lankan authorities having any relevant interest in the applicant because he lacked a profile of significance to such authorities. In Minister for Immigration and Border Protection v STZMA (2019) 264 CLR 421, Bell Gageler and Jeane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Ground 1A of the Further Amended Application for Review is without merit.
As to Ground 1 of the Further Amended Application for Review, such ground was based upon a claim that the Authority had failed to consider what was said to be critical integers of the claims made by the applicant, and that the Authority had unreasonably rejected others such that the Authority’s decision was illogical in a material way. Such ground is without merit.
Dealing with the applicant’s particulars of such ground, and in the light of the Authority’s non-acceptance of the applicant’s claims that he had been forcefully recruited into the LTTE, it was unsurprising that the Authority would reject any ancillary claim made by the applicant that he had performed any particular military function as an LTTE recruit. The Court accepts the submissions made on behalf of the First Respondent that the Authority specifically referenced the fact that the Applicant had claimed that he had been trained in first aid and how to use and disassemble an AK T56 rifle As to particular (a), the Authority found as follows:
72. At the IAA interview the applicant gave evidence consistent with his 16 February 2021 statutory declaration about the manner in which he was abducted by the LTTE into forced recruitment, though he now claimed that his training lasted one to two months rather than three months. He said that he was trained in first aid and how to use and disassemble and assemble the AK T56 (most common weapon used by both sides was the T56 assault rifle, a Chinese copy of the Russian AK47).¹⁶ I asked the applicant if he was trained in any other weapon systems. He said that he was not.
As to particular (b), the Authority considered in detail the applicant’s claims that he had been part of a unit called the “Charles Anthony Brigade” at [73] – [75] of its reasons. At [76] of its reasons the Authority rejected the applicant’s evidence. Such rejection was consistent with its rejection of any claim that the applicant had been recruited into the LTTE. The Authority was required, subject to the principles of legal unreasonableness, to weigh up the evidence before it and to appropriately consider such evidence. The Authority was not under an obligation to state why it was minded to accept or reject discrete aspects of the evidence. There was no jurisdictional error on the part of the Authority in its failing to state with particularity why it rejected claims relating to the applicant’s military expertise and training in circumstances where it was clear that the Authority had rejected all claims that the applicant was an LTTE recruit. [11]
[11] AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 at [57] – [61] inclusive per
As to particulars (c) – (g) inclusive, those claims are rejected on the same bases as set out in (a) and (b) hereof.
As to particular (h), the Authority was entitled to find that the fact that the applicant was working at the Grama Sevaka Office between June 2012 and 27 July 2012 seriously undermined his claim that he had had problems with, and was being sought out by, the Sri Lankan authorities prior to his departure from the country. Another reasonable and fair-minded decision maker could have rejected the applicant’s claims on the same basis as did the Authority. The reasoning of the Authority was clearly set out at [111] of its reasons.
The applicant has failed to establish any illogicality in reasoning on the part of the Authority. An applicant must meet a high bar in order to establish illogicality on the part of a decision maker. No extreme illogicality has been demonstrated.
In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:
“[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”
Even if it be found that the Authority had erred in failing to address a specific claim made on behalf of the applicant, no such error would constitute jurisdictional error because the decision of the Authority could not realistically have been different in the light of the Authority’s specific finding that the applicant had never been an LTTE recruit. [12]
[12] SZMDS.
Ground 1 is without merit.
As to Ground 2, the findings of the Authority at [103] – [110] were open to the Authority based upon relevant country information identified and considered by it. Further, the question of the applicant’s profile was legitimately able to be the subject of consideration by the Authority when assessing whether, if returned to Sri Lanka, the applicant was relevantly likely to be subjected to persecution. So much was obvious. At [108] – [109], the Authority found as follows:
108. I note, moreover, and was put to the applicant in writing, that in November 2019 DFAT reported that: Local sources estimate that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, some of whom would now be living overseas; and that: Military sources believe the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka is low, including approximately 280 individuals in Jaffna (Northern Province); and that: One source claimed the authorities were not actively looking for non- rehabilitated former LTTE members; and that: At the time of publication, DFAT was not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia. Also, in May 2020³³ the UK Home Office reported that: the Bureau of the Commissioner General of Rehabilitation (BCGR) had advised that the last former LTTE rehabilitee was reintegrated into society in 2019; and that: former LTTE cadres returning to Sri Lanka would be able to undergo rehabilitation if they requested it; and that: that the BCRG and also the International Organization for Migration (IOM) had advised that former LTTE cadres returning to Sri Lanka would be able to undergo rehabilitation if they requested it. Although DFAT assessed in November 2019 that It is not apparent from this that the Sri Lankan authorities have any remaining high-profile former LTTE members (persons who had held senior positions in the LTTE) who came to the attention of the authorities would likely be arrested, and although DFAT also assessed that low-profile former LTTE members (former combatants) would likely be detained and might be sent to rehabilitation, the evidence as a whole suggests that the Sri Lankan authorities have little interest in actively pursuing persons who were formerly LTTE combatants and have not been through rehabilitation, and it gives no indication of there being any particular interest in any such persons (and no indication that interest would be raised to a higher level if the person was suspected of having buried a munitions cache or perpetrated a Claymore attack during the war).
109. It has been submitted to the IAA that the November 2019 report only provides information about what the situation was like before the government changed, and that a new Sinhala Buddhist mandated government had taken power in the country. The latter remarks are a reference to the 16 November 2019 election of Gotabaya Rajapaksa as president, and the mid 2020 election which resulted in Mahinda Rajapaksa becoming prime minister. The Rajapaksa brothers oversaw the defeat of the LTTE as defence minister and president respectively, and both have had the support of, and have been associated with, Buddhist and Sinhalese nationalist movements, and some minority groups have expressed fears that they may face repression.³⁴ Since this time there have been reports of increased instances of the harassment, and sometimes the arrest, of some activists and journalists who have been publicly critical of the Rajapaksa brothers and their government, and I note that the applicant has referred the IAA to reports carrying information of this kind,³⁵ and also to reports of the condemnation of the , current commander of the Sri Lankan Army on allegations of having ordered actions during the civil war which amount to war crimes.³⁶ I note also that the applicant has provided a 4 March 2021 report about the discovery of explosive munitions, and how these were recovered and defused, and that police were further investigating the matter.³⁷ The latter report amounts to no more than an instance in which unexploded weapons were discovered such that police made further investigations about the matter. None of this amounts to evidence that there has been any renewed interest in in actively pursuing persons who were formerly LTTE combatants and have not been through rehabilitation, or who may have buried a munitions cache or perpetrated a Claymore attack during the war.

The Authority was entitled to rely upon relevant country information when making such findings in relation to a person reasonably considered by it to have a low profile. The Authority did not err in so finding.
The Authority determined that there was no real chance that the applicant would suffer harm or be persecuted, or that there was a real risk that the applicant would suffer significant harm, if he was returned to Sri Lanka. It found that the applicant did not meet the relevant statutory criteria for protection under ss. 36(2)(a) or 36(2)(aa) of the Migration Act 1956 (Cth) (the Act). It carried out a reasoned and considered analysis of the evidence before arriving at such conclusion.
The claims advanced on behalf of the applicant under Ground 2 fall into the category of decisions referred to by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ where it was said:
46. “It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
There has been no illogicality established on the part of the Authority. Ground 2 is without merit.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Egan.
Associate:
Dated: 9 November 2023

[61] and [68] per Black CJ, French and Selway JJ.

Snaden J.

File number(s):	BRG 151 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	23 October 2023
Catchwords:	MIGRATION LAW – Whether Authority failed to consider all elements of the applicant’s claims – whether the Authority’s findings were illogical – whether the Authority failed to understand and consider the contents of country information reports referred to by the applicant – no jurisdictional error established – application dismissed
Legislation:	Migration Act 1956 (Cth) s 36. Statutory Declarations Act 1959 (Cth) s 11.
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 CED15 v Minister for Immigration and Border Protection [2018] FCA 451 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v STZMA (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division:	Division 2 General Federal Law
Number of paragraphs:	43
Date of last submission/s:	10 August 2023
Date of hearing:	10 August 2023
Place:	Brisbane
Solicitor for the Applicant:	Taylor & Associates
Counsel for the First Respondent:	Mr B McGlade
Solicitor for the First Respondent	Clayton Utz

BRG 151 OF 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AZX21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	9 NOVEMBER 2023

Date from	Date to	Full residential address (including house number, street name, suburb, town/city, state/province, postcode). Do NOT provide a PO Box	Country
Month Year	Month Year		Country
/	CURRENT	Please refer to attachment	Sri Lanka
Oct-2009	Jan-2010	Thalluvpadu, Mannar District, Northern Province	Sri Lanka
Feb 2008	Oct-2009	Kodikaman Navaly Refugee Camp, Jaffna District, Northern Province	Sri Lanka
Aug-2007	Feb-2008	Pudumathaman, Mullaitivu District, Northern Province	Sri Lanka
Jul-2007	Aug-2007	Pokanai, Mullaitivu District, Northern Province	Sri Lanka
May-2007	Jun-2007	Iranacallai, Mullaitivu District, Northern Province	Sri Lanka
Apr-2007	May-2007	Puthukkudiyiruppu, Mullaitivu District, Northern Province	Sri Lanka
Feb-2007	Apr-2007	Vallaiyar Madden, Mullaitivu District, Northern Province	Sri Lanka
2004	Feb-2007	Kallaiparri South, Mullaitivu District, Northern Province	Sri Lanka
2003	2004	Vannarkulam, Mullaitivu District, Northern Province	Sri Lanka
Jul-1993	2003	Marichikaci, Mulikulam, Mannar District, Northern Province,	Sri Lanka