BQU17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 311
•4 April 2023
FEDERAL COURT OF AUSTRALIA
BQU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 311
Appeal from: BQU17 v Minister for Immigration & Anor [2020] FCCA 1139 File number: NSD 572 of 2020 Judgment of: BROMWICH J Date of judgment: 4 April 2023 Date of publication of reasons: 5 April 2023 Catchwords: MIGRATION – appeal from a decision of the former Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, to dismiss an application for judicial review of a decision of the Immigration Assessment Authority (IAA) – where the IAA affirmed a decision of a delegate of the Minister to refuse the applicant a Safe Haven Enterprise visa – whether the IAA misunderstood information put forward by the appellant – whether that misunderstanding by the IAA rises to a level of illogicality or irrationality in its conclusions to constitute jurisdictional error – whether the primary judge erred in failing to find such an error – Held: no error on the part of the primary judge –appeal dismissed with costs Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 4 April 2023 Counsel for the Appellant: Mr G Foster Solicitor for the Appellant: Sentil Solicitors Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 572 of 2020 BETWEEN: BQU17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
4 APRIL 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex-tempore)BROMWICH J:
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (also referred to as the IAA). The Authority had affirmed a decision of a delegate of the first respondent Minister not to grant the appellant a Safe Haven Enterprise Visa, a kind of protection visa. For completeness, it should be noted that this was the second Authority decision, the first having been quashed by consent.
The claims before the delegate that were automatically referred for review were summarised by the Authority at [6] in the following dot points (emphasis added to the claims that are key to the appeal):
·The applicant is a Tamil from, Batticaloa, Eastern District, Sri Lanka.
·The applicant lived in government controlled territory. The Liberation Tigers of Tamil Eelam (LTTE) controlled nearby territory and the paramilitary Karuna group were active in and around the applicant’s area.
·The applicant was held in security round up exercises in his village during the war. On one occasion in 2008/2009 he was detained for 14 days following a bomb blast in Colombo; he was released after being questioned and having his identity checked with his employer and after a Criminal Investigation Department (CID) investigation was completed.
·The applicant’s father was beaten by the army at some time during the war and he died in 2009 from a medical condition the applicant attributes to the beating.
·On 30 June 2008 one of his relatives (his maternal aunt’s grandson) was taken from his home at midnight by men who told his father they were from the Karuna group and that they were taking him for questioning and that his parents could come to their office the next day. The applicant’s relative had been involved with campaigning for a Tamil political party during the parliamentary election.
·His relative’s parents came the next morning and sought the applicant’s assistance with locating their son as the applicant could speak Sinhala. The applicant accompanied them to the offices of the Karuna group; however the Karuna group denied taking their son. The applicant then accompanied them to the police, the Human Rights Commission Sri Lanka (HRCSL) and the International Committee of the Red Cross (ICRC) where they lodged complaints. The applicant accompanied the parents to visit a number of camps to enquire about their son, including Welikanda detention centre where they had heard some Karuna group detainees were held. The parents were not successful in locating their son.
·After the visit to the Welikanda detention centre members of the Karuna group came to the applicant’s home and told him to stop assisting the search for his missing relative. After this warning the applicant stopped helping the family in their search for the son, although the parents continued their enquiries at other detention centres. Around April 2009 the applicant received a further warning from the Karuna group to stop assisting the search for his missing relative; he told them he had not been assisting. On 25 February 2010 the HRCSL wrote to the missing relative’s parents to enquire about him and after this the HRCSL and the ICRC became more active in looking for the missing relative. The applicant has provided an untranslated copy of the letter from the HRCSL and an English language document from the ICRC addressed to the missing relative’s mother and a copy of the HRCSL acknowledgement of complaint.
·In May 2010 the Karuna group came to the applicant’s home and spoke to his wife. They asked her if the applicant had gone to Vavuniya to enquire about his missing relative and she told them he had not but that he was at work. They left a letter advising the applicant to attend their offices at 10.00am on 1 June 2010. The applicant has provided an untranslated copy of this letter.
·The applicant was scared for his safety and decided not to attend the appointment as people who receive these letters and go to the Karuna group offices do not return. The applicant stayed in hiding to avoid being taken by the Karuna group; he went fishing at night which was the usual time the Karuna group abducted people and so was able to avoid them. He also stayed with friends to evade detection by the Karuna group. He believes the Karuna group continued to look for him because they usually travelled on motorbikes and he saw motorbikes parked in the vicinity and people told him they saw people on bikes looking for him. He remained in hiding and evaded the Karuna group until he departed Sri Lanka illegally in September 2012 and came to Australia.
·The applicant fears that because of his role assisting in the enquiries about his missing relative and because he did not attend their offices in 2010 the Karuna group will harm him on return to Sri Lanka. The applicant provided a letter from a Justice of the Peace known to his family in which the writer outlined the abduction and the applicant’s role assisting with the complaints and the subsequent threat received.
·His representative drew attention to the UNHCHR, "Comprehensive report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka”, and concerns about the lack of protection for witnesses of past human rights violations and war crimes and put forward that the applicant is vulnerable to harm from his relative’s abductors because of his past role and also should there be a re-opening of any investigation into the abduction.
·The applicant further fears that as a Tamil from the Eastern Province he will be imputed as being an LTTE supporter and harmed by the authorities on return. He also fears harm because of his illegal departure and as a returning failed asylum seeker. He is aware of media reports of the torture and disappearance of Tamil returnees and Tamils are being killed every day in Sri Lanka.
·His fear extends to all of Sri Lanka and he cannot obtain the protection of the authorities.
·The applicant provided a medical report dated 9 December 2015 stating a past history of post-traumatic stress disorder and depression in 2009, back pain and hypertension in 2014 and an upper respiratory tract infection in 2015.
The following further paragraphs of the Authority’s reasons are relevant to this appeal, with the portions specifically relied upon by the appellant highlighted, but to be read in the context of the balance of each paragraph and, in the case of [21], in the context of [20]:
[16]I am willing to accept that the applicant did not attend the appointment with the Karuna group, but I do not accept that the applicant was in hiding from the Karuna group from that time until he departed Sri Lanka because they were looking for him to harm him. The applicant did not leave Sri Lanka until September 2012, more than two years after the appointment time, and if the Karuna group was interested in locating him or harming him I consider they had ample opportunity to do so. I accept that the applicant worked at night and stayed on occasion with friends or other fishermen, but there is no indication that the Karuna group attempted to pursue him when leaving or arriving home from work, or when heading out to fish or on return from fishing. Nor is there any indication that they asked about him at his home, or enquired with neighbours or fellow fishermen. The applicant’s belief that they continued to have an interest in him is based on people on motorbikes being in the area. I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant and I consider it is speculation that the men on motorbikes were looking for the applicant. I do not accept that the Karuna group were looking for the applicant after he failed to attend the appointment in June 2010, or that they had an ongoing interest in him.
…
[20]I have accepted that the applicant is a Tamil from the Eastern Province in Sri Lanka and that during the civil war his father was beaten and the applicant was in stopped and questioned and identity checked in security exercises and detained for a period in 2008/2009 following a bombing in Colombo. Throughout the war the Tamil population was subject to scrutiny, monitoring, harassment and ongoing checks for links with the LTTE and it was in this environment that the applicant experienced this harassment and detention and was asked about any links to the LTTE. However, I take into account that since the cessation of hostilities in 2009 the security situation in Sri Lanka has improved. In 2011 the Government lifted the Emergency Regulations that had provided the security authorities broad powers to arrest and detain suspects5 and the information before the delegate advises that monitoring of Tamils from the former LTTE areas has decreased. The applicant did not have any links with the LTTE and I note that the applicant was never charged with any offences, was not placed into rehabilitation at the end of the war, and after the initial enquiries and investigations by the authorities when he was stopped or detained he was released and was able to live and work openly throughout the period of the war.
[21]The applicant has advanced that as a Tamil from the Eastern Province he will be suspected of having LTTE links and will be harmed by the army or their associates on return to Sri Lanka. I note the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka6 published in 2012 which provided guidance on the profiles of people at risk of harm and likely to be in need of protection at that time. The Department of Foreign Affairs and Trade (DFAT)7 and the earlier UNHCR reports demonstrate that Tamils from the former LTTE controlled areas, or in the vicinity of former LTTE controlled areas, are at low risk of being questioned or detained by the authorities simply for being Tamil. According to the UNHCR guidelines, being of Tamil ethnicity alone does not give rise to protection needs. Noting the country information before me and that the applicant was able to live and work openly throughout and after the civil war I do not accept that he was, or would be, imputed with an LTTE profile or that he was of adverse interest to the authorities.
It is important to note the distinction between the Authority’s acceptance of the appellant in fact working at night as he claimed, and the finding that he was able to live and work openly.
By an amended application of review, the appellant abandoned his initial 11 grounds of judicial review and instead advanced three new grounds 12 to 14 before the primary judge. Each of those grounds were unsuccessful before her Honour. Grounds 12 and 14 are maintained on appeal, asserting that her Honour erred in failing to find the jurisdictional error for each. As those grounds frame this appeal, it is convenient to reproduce them, sans particulars:
[12]The IAA erred when it stated at [16]: “The Applicant’s belief that they continued to have an interest in him is based upon people on motorbikes being in the area. I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant and I consider it is speculation that the men on motorbikes were looking for the applicant.” when the Applicant stated he was told they were coming and looking for him”, and so there was an indication the Applicant was being specifically searched for and such claim was more than mere speculation.
[14]The IAA erred by misunderstanding the nature of the evidence and of the applicant’s claim when it stated at paragraph [21] [CB291]: “Noting the country information before me and that the applicant was able to live and work openly throughout and after the civil war …”, when the evidence of the applicant was [at paragraph 5, 9th dot point, highlighted above] “The applicant stayed in hiding to avoid being taken by the Karuna group; he went fishing at night which was the usual time the Karuna group abducted people and so was able [to avoid] them. He also stayed with friends to evade detection by the Karuna group.”
Appeal ground 1 asserts that the primary judge erred in finding that the appellant failed to demonstrate jurisdictional error in relation to judicial review ground 12; and appeal ground 2 asserts that her Honour erred in finding that the appellant had not established judicial review ground 14. It is convenient to refer to the two appeal grounds by their original judicial review ground numbers, namely ground 12 and ground 14. The central argument advanced in support of both grounds is that the Authority misunderstood the evidence to the point of constituting jurisdictional error, and that the primary judge failed to so find.
Both appeal grounds (and the two judicial review grounds that are thereby maintained), read beneficially as going beyond a mere misunderstanding so as to be able reach the necessary level of jurisdictional error, assert in substance illogicality or irrationality in the Authority’s conclusions. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Crennan and Bell JJ observed as follows:
[130]In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65 [of the Migration Act 1958 (Cth)], is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[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.
For the appellant to succeed on either ground of appeal, he needed to establish that level of error on the part of the Authority, and that the primary judge erred in failing to find such an error.
The primary judge’s thorough consideration of both ground 12 and ground 14 is better reproduced than summarised, not least because it captures the substance of what was reargued before me, with some limited degree of modification and enlargement on appeal:
(a) as to judicial review ground 12 (now appeal ground 1), her Honour said:
Ground 12
[35]Mr Foster drew attention to the following passage of the Authority’s decision at [16]:
... The applicant’s belief that they continued to have an interest in him is based on people on motorbikes being in the area. I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant, and I consider it is speculation that the men on motorbikes were looking for the applicant.
[36]Mr Foster points to the transcript of the Visa interview, which evidence was before the Authority concerning the above passage. That evidence is in the context of the following exchanges on the transcript at page 27 (note that P refers to the Applicant, O indicates the Delegate, and I indicates the interpreter):
0: How do you know they started searching for you?
P:They come in motorbike and wait and my wife has seen they come in the night very fast in motorbikes and watch the movements if they see anyone they will grab them and go
I:They ride motorbike very fast at night and I saw some of the motorbikes parked so based on that
0: Where did you see parked?
P:Like nearby the junctions they just come like a civilian and if they see people over there they will just take them away
0:So how do you know they are searching for you? They could have been searching for anyone
P:Because they gace the letter and I didn’t go and because of that they will consider that as a crime and they usually abduct people after that
0:But my question is how do you know when you saw them at night near the junctions how do you know that they were searching for you?
P:Not me but people from my home told me these people are coming on the bike and also looking for me
[37]Mr Foster submits that it was not open to the Authority to conclude that it was speculation that the men on motorbikes were looking for the Applicant. The mere fact that there was no indication that the men had asked about the Applicant leaves open other alternatives. It does not follow that because the men on motorbikes did not ask, that they were not looking for the Applicant.
[38]Ms Morris, on behalf of the Minister, submits that the Applicant is asking the Court to draw an inference that “looking for” is a claim that the persons had “asked about him” but the evidence does not permit that inference.
[39]In its decision at [6], the Authority refers to the Applicant’s evidence (see above at [18]) that “he believes the Karuna Group continued to look for him because they usually travelled on motorbikes and he saw motorbikes parked in the vicinity and people told him they saw people on bikes looking for him”. This summary is consistent with the evidence that the Applicant gave at the Visa interview (see transcript page 27) set out above (see [36]). Specifically, the last sentence of the extract: “People from my home told me these people are coming on the bike and also looking for me”.
[40]The Minister further submits that the Authority’s summary is consistent with the manner in which the Delegate summarised the evidence given at the Visa interview, which was “the Applicant was asked to explain how he knew the Karuna Group was searching for him and he advised that people from his home told him that people on motorcycles drove through the village looking for him.”
Consideration
[41] A comparison of the Applicant’s Visa interview (the transcript extracted at [36] above), the summary of that evidence by the Delegate (see at [40] immediately above), and the Applicant’s claim recorded in the Authority’s decision at [6] (see above at [18]), demonstrates that there is no relevant misdescription of the evidence by the Authority. The above passages demonstrate that the Authority was aware of the Applicant’s claim that he had been told that people on motorbikes were looking for him, who he in turn believed to be members of the Karuna Group.
[42]The Authority did not accept this claim.
[43]The evidence is consistent, but that consistency does not imbue the evidence with any level of specificity. It remains at the level of bare assertion. So too is the evidence that people on motorcycles were looking for him because he, or other people, saw motorcycles nearby.
[44]I find that when the Authority came to consider this claim and the above evidence in its decision at [16], that the Authority correctly noted the evidence before it that “I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant and I consider it is speculation that that the men on motorbikes were looking for the applicant.”
[45]Further, as I have set out above, in the review of the Delegate’s decision, the Authority at [10] – [16], assesses and makes findings on all of the Applicant’s claims regarding the Karuna Group. The Authority gives great attention in those paragraphs, rejecting the aspects of the Applicant’s claims regarding being of interest to the Karuna Group.
[46]It is well established that the Authority is not obliged to accept, uncritically, claims made by applicants: see: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 596; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, 451.
[47]Having correctly recorded and described the Applicant’s evidence, and making specific findings concerning the other aspects of the Applicant’s claims regarding the Karuna Group, the Authority concluded that it is merely speculation that the men on motorbikes were looking for him. It was within the Authority’s purview to describe that evidence as speculative. It was open to the Authority not to be satisfied as to the claims that the Karuna Group was looking for the Applicant.
[48]I find that the Applicant has failed to demonstrate jurisdictional error in this regard, and Ground 12 is not established.
(b) as to judicial review ground 14 (now appeal ground 2), her Honour said:
Ground 14
[71]The crux of Ground 14 appears to be the conflict the Applicant asserts in the Authority’s decision between [16], and the last sentence of [21], and specifically, the Authority’s noting “that the Applicant was able to live and work openly throughout and after the civil war”. Mr Foster says that working openly must be understood as a finding that the Applicant has no concern with being apprehended, and submits that the Authority misunderstands the evidence.
[72]Mr Foster refers to the Visa interview at pages 26 and 27, and draws attention to the Applicant’s evidence after receipt of a letter the Karuna Group left at his home. Mr Foster draws attention to the following exchange:
O:And did they come searching for you after you did not go?
P: Yes they were looking for me after that but ... they don't search for people during the day they search for people at night... l didn't get caught
O:How were you able to avoid being caught?
P: I worked at night and most of the time I worked at night so they couldn't catch me and also I try to stay in few other Sinhalese areas before coming here.
O:Ok now I am just going to check something ... So you have said that in your statement that you have made... you did not go to the Karuna office and that you would go to the sea fishing at night and stay at friends and other fisherman's places.
P:Yes and I was fishing
0:So when you did not report to the Karuna office what did they do?
P: They started searching for me after that ... They couldn’t catch me
[73]Mr Foster submits that the Authority’s acceptance at [16] that the Applicant worked at night and stayed on occasion with friends or other fisherman suggests that the Applicants was not working “openly” but, to the contrary, was working discretely and covertly. Mr Foster submits that because of that misdescription or misunderstanding, the Authority then simply gets the matter wrong when it concludes, at [21], it does not accept that the Applicant was, or would be imputed, with an LTTE profile, or that he was of adverse interest to the authorities. That latter finding incorporates the error he says in the Authority’s understanding of the evidence and renders the ultimate finding erroneous and demonstrates jurisdictional error.
[74]Ms Morris in response submits that the passages to which Mr Foster refers are, in fact, dealing with different matters. At [16] of the decision, the Authority does not accept that the Applicant was in hiding from the Karuna Group from the time he did not attend the appointment with the Karuna Group required by the letter until he departed Sri Lanka because the Karuna Group were looking for him to harm him. The Authority then concludes its consideration in [16] with its non–acceptance that the Karuna Group were looking for the Applicant after he failed to attend the appointment [time in 2010], or that they had an ongoing interest in the interim.
[75]Whatever the Applicant did, or his own belief that the Karuna Group was looking for him, the Authority rejected that he was in hiding or that the Karuna Group was looking for him. The Authority’s decision at [21] is consistent with that finding and with transcript evidence of him working.
[76]The issue with which the Authority was concerned was the specific context in which the Applicant claimed he was working at night and staying with friends, and the Authority already dealt with that evidence in the context. I note that the Authority also expressed the view that, given the Applicant did not leave Sri Lanka until more than two years after the claimed appointment time, if the Karuna Group was interested in locating him or harming him, they could have. I consider, in these circumstances, that the Applicant has failed to establish the premise of ground 14 that there was any misunderstanding as to the nature of the Applicant’s evidence.
[77]It is clear from the whole of [21] that the Authority’s findings that the Applicant had been able to live and work openly throughout and after the civil war (at [21]), arose in that context of the Authority’s consideration of the Applicant’s claim that he would face harm as a Tamil from the Eastern Province, because he would be imputed or suspected of having LTTE links (see at [6] and [20]).
[78]Those findings were separate to the Authority’s earlier consideration of the Applicant’s claim to have been targeted by the Karuna Group and forced into hiding because of his involvement in inquiries after his relative (see at [11] through to [16]). The findings at [21] were findings made in the context where the Applicant had not claimed to be in hiding during the civil war, but only to have gone into hiding from mid–2010, more than a year after the end of the civil war, and where the Authority had already found that the Applicant was not, in fact, hiding from mid–2010. I accept the Minister’s submission there is no intrinsic conflict between the finding at [20] – [21] of the Authority’s decision that the Applicant was able to “live and work openly throughout and after the civil war”, and the finding at [16] that the Applicant “worked at night and stayed on occasion with friends or other fisherman”.
[79]I consider that the Authority gave evident and intelligible justification for each of its findings sought to be impugned by the grounds of review and the ultimate conclusions as to the risk of harm faced by the Applicant.
[80]I consider that the Applicant has not established Ground 14. The Authority did not fall into jurisdictional error.
Appeal ground 1 (judicial review ground 12 below)
The nub of the appellant’s argument is that the primary judge erred at [47] of her Honour’s reasons (PJ[47]) and did not comment on the aspects of the Authority’s reasoning he relied upon. It is therefore asserted that it should be taken that her Honour did not comprehend the deficiencies in that reasoning, leading to error in reaching the conclusion that the appellant’s asserted fear of being looked for by the Karuna group was based on no more than speculation. In particular, it is submitted that in addition to the passage of the transcript before the delegate that her Honour was taken to, reproduced at PJ[36] and further reproduced immediately above, consideration should have been given to a passage that was not identified on the preceding page of that transcript to the effect that the Karuna group had a modus operandi of using motorbikes to find people they were searching for.
Putting to one side that it is generally untenable to assert error by a primary judge by reference to material and arguments that were not advanced, I am unable to accept that argument because it is clear enough that the Authority was aware of that modus operandi. At the 9th dot point of [6] of the Authority’s reasons reproduced with emphasis at [2] above, that very set of circumstances was adverted to, being the reference to the fact that the Karuna group “usually travelled on motorbikes”, noting also that this also adverted to in the impugned [16] of those reasons by referring to the appellant’s “belief that they [the Karuna group] continued to have an interest in him is based on people on motorbikes being in the area”.
The substance of the appellant’s case before her Honour and on appeal rises no higher than arguments as to different conclusions that could have been reached by the Authority, but were not. That does not come close to establishing even factual or legal error, much less jurisdictional error on the part of the Authority. I consider that the primary judge’s explanation and characterisation of the Authority’s reasoning on this topic is impeccable, especially at PJ[47]. It follows that this ground of appeal must fail.
Appeal ground 2 (judicial review ground 14 below)
The appellant’s argument is that the acceptance by the Authority that he worked at night and stayed on occasions with friends or other fishermen suggested that he was not working openly, but rather discretely and covertly. This reasoning is then sought to be deployed to impugn the conclusion by the Authority at [21], in the context of country information summarised at [20], that the appellant was able to live and work openly throughout and after the civil war. The appellant asserts that there was no direct or indirect evidence before the Authority to support that conclusion, vitiating the ultimate finding of non-acceptance that he was or would be imputed with a LTTE (Liberation Tigers of Tamil Eelam) profile or was of adverse interest to the authorities.
The appellant characterises the primary judge’s finding at PJ[77] that him working at night was not inconsistent with being able to work openly as inconsistent and illogical. I see no inconsistency between a finding that the appellant was able to work openly, and acceptance of a claim that he in fact worked at night, and therefore, no error on the part of her Honour in that regard. It is important to note also that the Authority at [16] of its reasons made it clear that the appellant’s claim to be sought by the Karuna group, and that they had an ongoing interest in him were not accepted for the reasons given in that paragraph.
As with the first appeal ground, the substance of the appellant’s case before the primary judge and on appeal rises no higher than arguments as to different conclusions that could have been reached by the Authority, but were not. That again does not come close to establishing even factual or legal error, much less jurisdictional error on the part of the Authority. It follows that this appeal ground must also fail.
Conclusion
As both grounds of appeal have failed, the appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 5 April 2023
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