BCQ16 v Minister for Immigration - [2016] FCCA 2087

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCQ16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2087

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection (Class XA) visa – real chance test – whether the applicant was denied procedural fairness – whether the IAA failed to follow the statutory regime by not releasing information in its possession – whether the IAA failed to consider relevant evidence – whether the IAA’s decision is illogical or irrational – whether the Tribunal failed to consider the applicant’s claims cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 5H, 36(2), 65, 473CA, 473CB, 473CC, 473DA, 473DD, 473DE, 473GB, 473GD, 474, 476

Applicant:

BCQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1172 of 2016

Judgment of:

Judge Street

Hearing date:

15 August 2016

Date of Last Submission:

15 August 2016

Delivered at:

Sydney

Delivered on:

15 August 2016

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu
Stephen Hodges Lawyers

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1172 of 2016

BCQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Immigration Assessment Authority made under Part 7AA of the Migration Act 1958 declining to grant the applicant a Protection (Class XA) visa made on 13 April 2016. The applicant was found to be a citizen of Sri Lanka. The applicant was found to be a Tamil Hindu originating from a particular district and feared harm by the Sri Lankan authorities because of his young age, his Tamil ethnicity, his origin from the east, his brother’s involvement with the LTTE and because he would be returning as a failed asylum seeker from a western country.
The applicant also feared harm from parliamentary groups including former Karuna Group and Pillayan Group members giving false information about the applicant to the government. On 4 March 2016 the delegate was not satisfied that the applicant had a well-founded fear and that there was a real chance the applicant would face serious harm on return to Sri Lanka. The delegate was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk the applicant would suffer significant harm, as required by s.36(2)(aa) of the Act. On 4 March 2016 the delegate also made an assessment as to whether the applicant was an excluded fast track applicant and found that the applicant did not meet that definition in s.5(1) of the Act.
Part 7AA identifies the fast track process in relation to certain protection visa decisions. Section 473CC imposes an obligation on the Immigration Assessment Authority (IAA) to review a fast track reviewable decision under s.473CA. That is a migration decision within s.474 of the Migration Act 1958 in respect of which this Court only has power to grant a writ if there is found to be a jurisdictional error pursuant to s.476 of the Act. The scheme of the Act in relation to Part 7AA, Division 3, in the conduct of review by the IAA, requires that Division 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
That Division also specifies that nothing in this Part requires the IAA to give to a referred applicant any material that was before the Minister when the Minister made the decision under s.65 of the Act. Subdivision C deals with the getting of new information and s.473DE of the Act imposes an obligation in relation to new information that would be the reason, or part of a reason, for affirming a fast track reviewable decision. Division 6 of Part 7AA contains provisions providing restriction on the disclosure of certain information that would be contrary to public interest.
Section 473GB provides for the giving of notification to the IAA in writing that the section applies to a document, disclosure of which would be contrary to the public interest for any reason specified in the certificate. Under s.473GB of the Act where such notification is given to the IAA, the IAA may have regard to any matter contained in the documents, or to the information, the subject of the certificate, and may, if the IAA thinks it appropriate to do so, having regard to any advice given by the secretary under subsection (2), disclose any matter contained in the document and information to the applicant.
Section 473GB(4) provides that if there is to be a disclosure, the IAA must give a direction under s.473GD. Section 473GD identifies a procedure for notification in writing by the president in the way the President considers appropriate. That information or the contents of the document should not be published or otherwise disclosed, or should not be published or disclosed, except in a particular manner and to particular persons. There was no direction in the present case made by the President under s.473GD.
There was however a certificate made by the secretary under s.473GB in relation to particular documents concerning the applicant’s brother. Both certificates were issued on 4 March 2016. By letter dated 7 March 2016 the applicant was notified that the refusal to grant the applicant a protection visa had been referred to the IAA. The applicant in this case obtained a legal representative, being a migration agent, who lodged an appointment of authorised recipient and an appointment of representative.
On 24 March 2016 submissions were made on behalf of the applicant by the applicant’s migration agent. On 31 March further material was provided by the applicant’s migration agent to the IAA. The IAA identified the findings of the delegate and made reference to the delegate not accepting that the applicant had personally worked for the LTTE or that he and his brother were ever of adverse interest to the authorities, nor that they were the target of unknown men.
The IAA noted the delegate found that as a Tamil from the east and as a failed asylum seeker who departed illegally, the applicant may face some low level harassment and be charged upon return. However, the IAA found that given the authority’s lack of interest in the applicant, the applicant would not face a real chance of persecution or real risk of significant harm in the reasonably foreseeable future. The IAA expressly referred to having regard to the material referred to by the secretary under s.473CB of the Act in relation to the applicant’s brother.
The IAA referred to a submission that was received from the applicant’s representative, which reasserted the applicant’s claims, and which the IAA concluded did not constitute new information as defined by s.473DC(1) of the Act. The IAA noted that there were references to reports that were not before the delegate. The IAA noted that those related to the post-war environment in the situation of Tamils returning to Sri Lanka and the IAA accepted that they may be relevant in assessing the application.
The IAA accepted that the post-war material constituted new information as defined by the Act. In this regard in respect to those reports, the IAA found that on the basis of the information before it, it was not satisfied that the information falls within ss.473DD(b)(i) or 473DD(b)(ii) and was not satisfied that there were exceptional reasons to justify considering the information. Accordingly the IAA did not further consider the information in those reports. The IAA identified there was also reference to the 2012 human rights watch report in the United States Department and a 2014 country report on human rights practice in Sri Lanka, that was before the delegate. The IAA found these reports did not constitute new information and to which the IAA had regard.
The IAA’s decision identifies the applicant’s claims in terms of the incidents that he alleges occurred and his fears of harm. One of the incidents referred to was that the applicant’s family arranged for him to go to Saudi Arabia and that there he endured working conditions that were harsh and involved bullying and sexual assaults. The allegation was advanced that he could not return home because of unknown men in Sri Lanka that had been asking after his and his brother’s whereabouts.
The IAA made reference to the brother’s alleged LTTE training, in the course of which the IAA referred to the brother travelling to Colombo to obtain his passport and that he departed Sri Lanka legally in 2006 on his own passport. There is a reference to the brother returning to Sri Lanka in 2008 temporarily travelling on a false passport. The IAA referred to the brother having been accepted as a young Tamil male who was vulnerable from the east without pro-government political affiliation.
The IAA noted that the assessor made no implied or express findings on whether the brother had undergone LTTE training or had been personally identified by authorities, but found that due to issues identified with his claimed timeline, that the brother did not return to Sri Lanka as claimed in 2008. The IAA referred to the applicant’s brother’s ability to obtain a passport from the Sri Lankan authorities and depart Sri Lanka without incident and that the authorities were not interested in targeting him when he departed in 2006.
The IAA accepted that the brother did return to Sri Lanka in 2008 and accepted that he could have travelled on his own genuine passport. The IAA found that nevertheless the evidence before the IAA did not suggest that the brother had been personally sought by the authorities since his 2006 departure. The IAA made reference to the applicant claiming that his family had been questioned by unknown men in relation to his brother’s whereabouts.
The IAA did not accept that these men were associated with the Sri Lankan authorities or other political group, or that they continued their interest in the applicant’s brother or the applicant. The IAA did not accept that the applicant’s brother’s involvement was ever known to the authorities or the Karuna Group or that the applicant’s brother has subsequently become of interest to authorities in the Karuna Group or the TMVP, even after being granted refugee status in Australia in 2009.
The IAA did not accept that the applicant had been sought by authorities, the Karuna Group or the TMVP for reasons of his connection with his brother. The IAA proceeded to consider the applicant’s involvement in the LTTE. The IAA found the applicant did not have any personal involvement with the LTTE. The IAA made reference to the applicant’s claims that he was repeatedly bullied and sexually assaulted in Saudi Arabia between 2007 and 2011 and that the applicant claimed that he was forced to endure this because it was not safe to return to Sri Lanka, but that it became unbearable.
The IAA was not satisfied that the applicant had made mention of unknown men looking for him in 2007 to 2011 in his arrival interview. The IAA found the applicant was not motivated by fear to leave Sri Lanka in September 2011 and did not accept that unknown men were looking for the applicant between 2007 and 2011. The IAA made reference to the documentary evidence of complaints that the applicant’s parents lodged with the relevant police station and the Sri Lankan Human Rights Commission in February 2013.
The IAA noted that the timeline referred to in the complaints was inconsistent with that provided by the applicant and that it omitted his return trip to Saudi Arabia between 2011 and April 2012. The IAA also noted that the complaints made by the parents omitted any mention that unknown men were looking for the applicant. The IAA found that the complaints made by the parents do not support the applicant’s claims that he was sought by unknown men between 2007 and 2011. The IAA was not satisfied on the evidence that the men the applicant claims were looking for him were Sri Lankan authorities.
The IAA did not accept that the applicant was wanted by the authorities for his or his brother’s involvement. The IAA found that the men who the applicant alleged had been looking for him were not the authorities. The IAA found that the men the applicant said were looking for him in 2012 to 2013 had no connection with the Karuna Group, the TMVP or the Pillayan Group and did not accept that the applicant fears that they will inform on him to the authorities.
The IAA found that the applicant had never interacted with paramilitary group members and had never been of interest to them. The IAA found that neither the applicant nor his family had been targeted by the Karuna or Pillayan Group. The IAA found that the applicant had never been involved in any public demonstrations or other protests against the government. The IAA made findings in relation to the applicant’s fear of unknown men and concluded that these threats did not emanate from the authorities, the Karuna Group, the TMVP, or former Pillayan members.
The IAA found that the threats did not continue subsequent to February 2013. The IAA found that it was not satisfied on the evidence before it that the applicant faces a real chance of persecution from these men in the reasonably foreseeable future upon return to Sri Lanka. The IAA made reference to the position for Tamils having markedly improved since the end of the war. The IAA, having considered the applicant’s circumstances and information, was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future on the basis of his Tamil race and origins.
The IAA found the country information did not indicate that the applicant would face persecution on account of his Tamil ethnicity or gender or young age, or that this would elevate his profile to be of adverse interest to the authorities. The IAA did not accept that the applicant faced a real chance of persecution on account of his profile as a young Tamil male from the east. The IAA then considered the situation in relation to returnees.
The IAA found that even if the applicant was held over the weekend, he will face a brief period of detention, but that the conditions will not be such as to give rise to the level of a threat to his life or liberty or to significant physical harassment or ill treatment, or otherwise amount to serious harm. The IAA made reference to the applicant being a returned failed asylum seeker and noted that the applicant had not been identified as a person who had an actual or imputed LTTE association or as a critic of the Sri Lankan government.
The IAA found that the authorities do not impute failed Tamil asylum seekers as being LTTE members and supporters. The IAA found that it was not satisfied that the applicant faces a real chance of persecution on the basis of returning as a failed asylum seeker who departed illegally. The IAA made reference to having considered the applicant’s circumstances in their totality. The IAA did not accept that the applicant was of adverse interest to the authorities because the applicant claims they are in possession of a photograph of him. The IAA found that this did not give rise to a real chance of persecution, nor elevate his profile such that he would face a real chance of persecution in conjunction with other claims.
The IAA was not satisfied that the applicant as a young Tamil male originating from the east of Sri Lanka, even with his brother’s LTTE training and his uncles having been killed and disappeared, was previously sought after by unknown men and being a person who would be returning to his home region having been charged under the Immigrants and Emigrants Act (Sri Lanka), and as a failed asylum seeker who had spent time in Australia and whose photograph may, as the applicant claims, be in the possession of authorities, gives rise to a well-founded fear of persecution.
The IAA found that the applicant did not meet the requirements in the definition of refugee in s.5H(1) and that the applicant did not meet the criteria under s.36(2)(a). The IAA had regard to the cumulative circumstances and profile of the applicant and found that the applicant was not of adverse interest to authorities and did not accept that the applicant’s photograph being in the possession of authorities of itself gives rise to a real risk of significant harm, nor elevates the applicant’s profile such that he would face a real risk of significant harm in conjunction with other claims.
The IAA did not accept that there were substantial grounds for believing it was a necessary and foreseeable consequence, that if the applicant is removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm because he was previously sought by unknown men and being a person whose uncles were killed and disappeared, because of his Tamil race, because he is perceived to hold a pro-LTTE opinion or have LTTE links, because he is a young male from the east, or because he left illegally and sought asylum in Australia.
The IAA found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The IAA found the applicant did not meet the complementary criteria under s.36(2)(aa) and affirmed the decision not to grant the applicant a protection visa.
The grounds of the application are as follows:
Ground 1
The IAA was misled by the delegate's notification under s473GB of the Migration Act, thereby causing the IAA like the delegate to supress/not disclose “any matter contained in the documents [which] were part of the applicant's brother's visa applications”. resulting in a decision that is affected with legal error due to a breach of procedural fairness.
PARTICULARS
(i) The Minister's delegate did not provide the Applicant or his representative all of the information and documents contained in the Applicant's brother's visa applications, “because the disclosure of any matter contained in the document would be contrary to the public interest because the documents were part of the applicant's brother's visa applications and not provided by the applicant ...” [CB 205].
(ii) The Minister's delegate notified the IAA pursuant to s473GB of the Migration Act against disclosing certain information [CB 205].
(iii) The delegate referred to “visa applications” in the notification, implying that the brother made more than one application.
(iv) The Applicant's brother's application for protection was determined by a primary decision maker / refugee assessor in 2009 [CB 237] under a different statutory framework.
(v) The Applicant's brother was found to be a refugee by a different primary decision maker/refugee assessor.
(vi) Minister's delegate who determined the Applicant's case at [CB 195, Paragraph 144] considered the Applicant's brother to have had “low level of involvement with the LTTE” on the basis of the Applicant's brother undergoing “a couple of months of forced training” and due to other attributes.
(vii) At [CB 237, Paragraph 21] the IAA acknowledged that the previous assessor made no implied or express findings as to whether the Applicant's brother had undergone LTTE training, nevertheless the IAA for reasons outlined at [CB 237 and 238] did not accept that the Applicant's brother's “LTTE involvement” was known to the Sri Lankan authorities [CB 238, Paragraph 23], hence the IAA inferred that the Applicant was not sought after by the authorities.
(viii) At [CB 237 and 238, Paragraphs 16 – 23] the IAA appears to make “fresh” findings of its own. The inferences made by the IAA are based on information that the Minister's delegate that the IAA had in their possession which were not disclosed to the Applicant or his representative pursuant to the Minister’s delegate’s notification under s473GB of the Migration Act.
(ix) The IAA does not appear to have exercised its powers to disclose information under s473GD of the Migration Act. Therefore on the basis of available information the IAA appears to have had regard to the Minister's delegate's notification (i.e. not to disclose certain information) and refrained from disclosing information the IAA had in its possession.
(x) The IAA therefore committed jurisdictional error as not only did it fail to disclose information that was relevant to the Applicant, the IAA made fresh findings of fact relating to the Applicant's brother's claims that were made in 2009 on the basis of information the IAA had in its possession which neither the Applicant or the Applicant's representative had access to.
(xi) It is difficult to comprehend as to how disclosing details of the Applicant’s brother's claims to the Applicant would be contrary to public interest due to the close familial links.
Ground 2
The IAA committed jurisdictional error as the IAA has disclosed a considerable amount of information about the Applicant's brother's claims made in 2009 which has been recorded in the IAA decision record. The IAA failed to follow the procedure laid down under ss 473GB and 473GD of the Migration Act when “disclosing” such information. As the IAA disclosed information without following the statutory procedure laid down under these sections of the Migration Act, the IAA could not rely on the statutory safeguard in place, for non-disclosure of certain information. The IAA therefore committed jurisdictional error as it did not disclose in full all information it had in its possession about the Applicant's brother, and not to do so was procedurally unfair.
PARTICULARS
(i) s473GB ( 4) of the Migration Act states that
... If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection 930, the Authority must give a direction under section 473GD in relation to the information
(ii) s473GD of the Migration Act further states that any information given to the IAA should not be disclosed except in a particular manner. The IAA does not appear to have disclosed the information it has published in the decision record in a particular manner.
(iii) The information disclosed along with fresh findings made by the IAA at [CB 237 and 238] should have been disclosed to the Applicant, failing to do so amounts to a breach of procedural fairness.
Ground 3
The IAA committed jurisdictional error by tampering with the Applicant's brother’s application and claims which were made at a different point of time, and assessed by a different assessor under the statutory framework that existed at that point of time (2009).
PARTICULARS
(i) Having acknowledged at [CB 237, Paragraph 21] that the previous assessor made no implied or express findings on whether the Applicant's brother had undergone LTTE training or had been personally identified by authorities the IAA makes its own findings on several integers of the Applicant's brother's claims [CB 237 and 238].
(ii) The IAA exceeded its authority as not only did it not disclose certain information that it relied upon which was relevant to the Applicant, the IAA went a step further and made fresh findings of fact on integers of claims that may / may not have been dealt with in 2009.
(iii) It is unclear if the IAA had access to the 2009 assessor's decision record and if it did, the express and implied findings in the 2009 assessor's decision record was not known to the Applicant and the Applicant's representative.
On the basis of the language used in the IAA decision record however, particularly Paragraphs 22 and 23 at CB 238, it appears the IAA not only made fresh findings but made findings that were contrary to the 2009 assessor's express and or implied findings.
Ground 4
A particular social group that was clearly evident on the material was not considered by the IAA.
PARTICULARS
(i) The Applicant stated in his written statement at [CB 90] that he was “molested sexually and was raped” while in Saudi Arabia.
(ii) Despite the incident of sexual assault and rape having occurred in Saudi Arabia, the IAA was obliged to assess this claim in the context of future harm of a similar nature to the Applicant if he is returned to Sri Lanka especially as the Applicant has suffered harm in Saudi Arabia and appears to be a vulnerable male.
(iii) While the Applicant may not have explicitly mentioned or formulated a claim founded on a particular social group, the Applicant having suffered sexual assault and rape in the past was sufficient enough for the IAA to explore the possibility of the Applicant facing future harm of a similar nature due to his membership of a particular social groups of Tamil males who may be at risk of suffering harm similar to that what they may have experienced in the recent past.
(iv) The reason the Applicant was sexually assaulted and raped was not explored. It is possible that the Applicant was targeted in the manner he was while in Saudi Arabia by males, because he has certain attributes and is therefore vulnerable.
(v) The IAA ought to have at the least explored this claim, as the Applicant being a victim of sexual assault and rape could suffer other forms of harm due to the incident of sexual assault and rape which is likely to have affected his state of mind.
Ground 5
The IAA's decision is affected by jurisdictional error as the finding made at [CB 240, Paragraph 32] is irrational, illogical, or so unreasonable that no reasonable decision maker could make it.
PARTICULARS
(i) Having had access to the Applicant’s brother’s “visa applications”, the IAA ought to have looked for any documentary evidence that may have been submitted by the Applicant’s brother in 2009. The Applicant’s brother who arrived in Australia in 2009 may have provided documentary evidence that may support the Applicant’s claim that both the Applicant and his brother were sought after by unknown men during the period after 2007.
(ii) As the IAA in its decision record did not confirm of having considered the Applicant's brother's visa application documents, it is plausible that the IAA did not consider contents of the Applicant's brother's application and documents that he may have submitted to the department in 2009.
(iii) The IAA therefore could not have inferred on the basis of the documentary evidence presented by the Applicant that unknown persons were not looking for the Applicant or his brother Suresh without having fully considered contents of the Applicant's brother's application and documents that he may have submitted to the department in 2009
Ground 6
The IAA failed to assess the Applicant's claims cumulatively.
PARTICULARS
(i) At [CB 248, Paragraph 66], the IAA confirms having considered the Applicant's circumstances in their totality.
(ii) Though the IAA has considered the Applicant's brother's LTTE training, the IAA fails to consider a vital fact, that fact being the Applicant's brother was found to have engaged Australia's protection obligations.
(iii) The Applicant's brother's LTTE training while a relevant attribute when assessing the cumulative effect of Convention related harm to the Applicant, the IAA needed to assess the Applicant's brother's claims in its entirety and not dilute the effect of the Applicant's brother having been granted asylum in Australia.
(iv) The IAA further failed to consider its own assertion at [CB 238, Paragraph 22] that the Applicant's brother would not have travelled on his genuine passport. The Applicant could face harm on his brother's account.

In relation to ground 1, Mr Tambimuttu, the solicitor for the applicant, submitted that there was information that the IAA had used that was the subject of the public interest immunity constraint identified under the s.473GB certificates and that there had been no direction made in accordance with s.473GB(4).
It was submitted on behalf of the applicant that the applicant had been denied the opportunity of access to the whole of the material and that, as the IAA had made reference to some alleged information coming from the material the subject of the s.473GB certificates, the review was contrary to the requirements of procedural fairness. I accept that the review must be conducted in accordance with the statutory regime and the rules of procedural fairness applying so far as not excluded by the work done by s.473DA.
No transcript of the hearing before the delegate has been obtained and the solicitor for the applicant invited the Court to infer that the reference to the applicant’s brother’s use of a passport was something that must have come from the information, the subject of the public interest non-disclosure directions made under s.473GB. In the absence of any direction under s.473GB and the absence of a transcript, I am not prepared to infer that the IAA took into account material that was the subject of the certificates under s.473GB in relation to the reference to the brother’s use of a passport or the other matters raised by the IAA in relation to the brother’s LTTE training.
I am not satisfied that there was disclosed any information by the IAA that was the subject of the s.473GB certificate. For this reason there was no procedural unfairness as alleged in relation to ground 1 of the application. Even if there had been a failure to disclose information in relation to the reference to the brother’s use of a passport, I accept the first respondent’s submissions that such an error does not give rise in the present case to any denial of procedural fairness or jurisdictional error.
If it was found that the IAA had by inadvertence made reference to information the subject of the s.473GB certificates, I do not accept that that these circumstances give rise to any relevant unfairness in the conduct of the review. The applicant’s migration representative expressly addressed the brother’s activities in relation to undertaking training for the LTTE and on the material before the IAA, the representative was aware of the certificates that had been issued under s.473GB.
The applicant accordingly had an opportunity to put submissions in relation to his fears concerning his brother’s involvement with the LTTE and it is apparent the IAA took into account the basis upon which the applicant’s brother had at that time been accepted as a refugee, being a young Tamil male from a particular area at the time that his brother’s application was considered. I do not accept that the reference to the brother’s use of a passport was, in the circumstances of the present case, in any way material in relation to the IAA’s assessment of the applicant’s claims and evidence.
Equally, if there was an inadvertent disclosure, the absence of the issuing of a direction in accordance with s.473GB(4) gives rise to no procedural unfairness or jurisdictional error in the conduct of the review by the IAA. For these reasons, ground 1 fails to make out any jurisdictional error.
In relation to ground 2, for the reasons already given, I do not accept that there was a disclosure of information within the certificates under s.473GB. Even if there was such a disclosure, I do not accept that the consequence that follows is that there should have been a full disclosure of all the information the subject of the public interest immunity claim.
Further, I do not accept that the absence of the provision of all the material, the subject of the public interest immunity claim, gave rise to any procedural unfairness to the applicant in the present case. As indicated, the applicant’s representative was, in the material before the Court, aware of the certificates and was able to and did advance submissions in relation to the applicant’s brother’s involvement in the LTTE.
I do not accept that procedural fairness required disclosure of the whole of the information the subject of the public interest immunity certificates, even if there had been a reference to material inadvertently by the IAA in the present case in relation to the applicant’s brother’s passport. Ground 2 fails to make out any jurisdictional error.
In relation to ground 3, it was open to the IAA to make findings in relation to the applicant’s brother’s application for refugee status. The findings of the IAA in relation to the applicant’s brother’s refugee claim and findings in relation to involvement with the LTTE were open on the material before the IAA and cannot be said to lack an evident and intelligible justification. Mr Tambimuttu, on behalf of the applicant, disavowed that tampering was intended to be an intentional allegation. I do not accept that there is any jurisdictional error by the IAA in relation to its findings in respect of the applicant’s claims concerning his brother and his involvement in the LTTE. Ground 3 fails to make out any jurisdictional error.
Ground 4 alleges that the applicant was as member of a particular social group that should have been considered by the IAA. I do not accept that any such social group of molested, sexually assaulted and raped persons whilst in Saudi Arabia arose on the face of the material put before the IAA. The applicant’s claims concerned his fear in relation to returning to Sri Lanka.
It is apparent that the IAA took into account the evidence of the applicant in relation to the alleged incidents in respect of unknown men looking for the applicant. The findings by the IAA in relation to unknown men were open on the material before the IAA and cannot be said to lack an evident and intelligible justification. No claim of fear and persecution arose on the material, or on a fair reading of the same in relation to the alleged social group of molested, sexually assaulted and raped persons in Saudi Arabia in respect of the applicant’s fears of returning to Sri Lanka. Ground 4 fails to make out any jurisdictional error.
In relation to ground 5, the IAA’s reasons in relation to information provided by the applicant and the findings in that regard were open on the material before the IAA and cannot be said to lack an evident and intelligible justification. The absence of reference to the brother’s material is not a basis upon which it can be said that the IAA’s decision was unreasonable or illogical or irrational. Ground 5 fails to make out jurisdictional error.
In relation to ground 6, the IAA’s reasons are not to be read with a fine eye for error and should be read as a whole. The reference to having considered the applicant’s circumstances in their totality is equivalent to having considered the applicant’s claims cumulatively. The absence of reference to the brother’s LTTE training in para.66, or to the applicant’s brother’s passport is not a basis upon which the Court should infer that the IAA failed to have regard to the totality of the evidence.
The IAA’s reasons reveal an orthodox assessment of the applicant’s claims and evidence and there is no proper basis for concluding that the IAA failed to consider the applicant’s claims cumulatively. Ground 6 fails to make out any jurisdictional error.
The application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 August 2016