BQX17 v Minister for Immigration and Border Protection
[2022] FCA 595
•20 May 2022
FEDERAL COURT OF AUSTRALIA
BQX17 v Minister for Immigration and Border Protection [2022] FCA 595
Appeal from: BQX17 v Minister for Immigration and Border Protection [2020] FCCA 1161 File number(s): NSD 632 of 2020 Judgment of: GREENWOOD J Date of judgment: 20 May 2022 Catchwords: MIGRATION – consideration of an application for leave to rely upon an amended notice of appeal – consideration of an application for leave to rely upon an affidavit of Ms Harendran – consideration of whether the Immigration Assessment Authority failed to identify and thus failed to address a claim said to have been made by the appellants for the purposes of a review proceeding before the IAA Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(a) 36(2)(aa), 36(2A), 473CB Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of last submission/s: 14 January 2021 Date of hearing: 2 February 2021 Counsel for the Appellants: Mr D Taylor Solicitor for the Appellants: Sydney West Legal and Migration Counsel for the Respondents: Mr J Kay Hoyle Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
NSD 632 of 2020 BETWEEN: BQX17
First Appellant
BQY17
Second Appellant
BQZ17
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.Leave is granted to rely upon the amended notice of appeal.
2.Leave is granted to rely upon the affidavit of Noeline Dilhara Balasanthiran Harendran affirmed 16 April 2020.
3.The appeal is dismissed.
4.The appellants pay the costs of the first respondent of and incidental to the appeal.
5.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia (now described as the Federal Circuit and Family Court of Australia (Division 2)) (the “primary court”), constituted by his Honour Judge Cameron (the “primary judge”) dismissing an application for the grant of the constitutional writs in relation to a decision of the Immigration Assessment Authority (the “IAA”) affirming a decision of the Minister’s delegate not to grant the combined application of the appellants for Class XE Subclass 790 Safe Haven Enterprise visas (the “visas” or “visa”).
The appellants are a family unit in the sense that the first appellant is the husband of the second appellant, and the third appellant is the son of the first two appellants.
The appellants filed a notice of appeal which as to Grounds 1 and 2 is in the same terms as Grounds 1A and 1B of the amended originating application filed in the primary court by which the appellants contended for jurisdictional error on the part of the IAA. The notice of appeal also contends for error on the part of the IAA as framed by a further ground, Ground 3. However, the appellants seek to rely on a proposed amended notice of appeal (for which they seek leave) which is described as a “development” of the grounds argued before the primary court. By the proposed amended notice of appeal, the appellants seek to “consolidate, clarify and simplify” the grounds of jurisdictional error sought to be established. They do so by seeking to consolidate Grounds 1 (the earlier Ground 1A before the primary court) and Ground 2 (the earlier Ground 1B) of the existing notice of appeal into a synthesised Grounds 1(a) and (b), and by abandoning entirely Grounds 2 and 3 of the earlier notice of appeal. In the event that leave to rely upon the amended notice of appeal is refused, the appellants seek to rely upon “Ground 1A as argued in the Court below”, which, as mentioned, is in the same terms as Ground 1 of the notice of appeal as originally filed.
The proposed Grounds 1(a) and (b) (and for that matter, Ground 1A before the primary court), raises a relatively short point of whether the IAA failed to identify a claim, or an essential integer of a claim, put to the IAA (and to the delegate) and by failing to do so, the IAA failed to discharge its statutory review function concerning the decision referred to it for review.
However, addressing the contention requires a content‑specific examination of what exactly was put to the IAA as the claims of the appellants under s 36(2)(a) having regard to ss 5H and 5J of the Act, and s 36(2)(aa) having regard to s 36(2A) of the Act, so as to identify whether the particular claim or the particular integer of the claim was identified and addressed.
It is common ground that the husband and wife appellants arrived in Australia as “Irregular Maritime Arrivals”; that the Minister authorised the making of the application for the visas; and that the decision of the Minister’s delegate to refuse the application was properly referred by the Secretary under s 473CB of the Act to the IAA together with the relevant material thus engaging the IAA’s review jurisdiction.
The third appellant was born in Australia. The IAA accepted that the first two appellants are Sri Lankan nationals and the IAA proceeded on the basis that there was no evidence to suggest that the third appellant was regarded as anything other than a Sri Lankan national member of a Sri Lankan family unit.
Before examining the precise formulation of the ground of appeal sought to be relied upon (and also the elements of Ground 1A before the primary court), and the factual contention contained within the ground sought to be agitated, it is necessary to first examine the matters actually put to the delegate and the IAA so as to put the ground of appeal sought to be relied upon in context.
The starting point is the document described as “Irregular Maritime Arrival Entry Interview” dated 7 January 2013. In that document at p 11, the first appellant said this:
I used to help the LTTE [Liberation Tigers of Tamil Eelam] when there was celebrations and when Karana [Karuna] split from the LTTE and formed his own group, [Karuna] didn’t like that I was helping the LTTE so he came to my house and threatened me and saying he was going to shoot me and kill me. This is the reason I left Sri Lanka. During the celebrations I used to transport things and stick flyers and banners up. I helped them with their celebrations. I was not a member of the LTTE though.
[emphasis added]
In the same document, the first appellant was asked whether he or any members of his family had been associated or involved with any political group or organisation and he answered “No”. He was also asked whether he or any member of his family had been involved in any activities or protests against the government and he answered “No”.
In support of the application for the visas, the first appellant gave a statutory declaration dated 23 February 2016.
In that declaration he asserts the following factual matters.
He says that he is a Sri Lankan citizen who is an ethnic Tamil and although he has been a Hindu since birth, more recently he has embraced Christianity. He says he was born in a village in the Batticaloa District in the Eastern Province of Sri Lanka. The village was located close to LTTE controlled areas in that District which I will describe as “KAD”, “AMB” and “KOKK”. He says that when he was a student he assisted the LTTE during events which he describes as the “Martyrs day celebrations”, “Pongu Thamil” and “Annai Poopathi remembrance day”, organised by the LTTE. Sometime in 2004 while studying at what he describes as an advanced level student (a Grade 12 student), he put up posters and decorated the stage prior to such LTTE events as the three events just described. He says that it was compulsory for students at that level, as he describes it, to assist the LTTE during such events. He says that at the time when he was providing this assistance during LTTE events, he recalls that Sri Lankan army soldiers were closely monitoring such events.
The first appellant says that sometime in 2004 “Karuna” who was a senior LTTE cadre member and commander of the “Eastern province” defected from the LTTE. He says that the LTTE remained in the Eastern province after Karuna and his supporters defected from the LTTE. He says that the general public had a “bad opinion” of Karuna and his men who had defected from the LTTE. He says that many (people) did not support the Karuna Group. He says that after Karuna and his men defected from the LTTE, he “began to support the LTTE more than before”. He does not identify in the declaration what exactly he means by the phrase “more than before” except by saying this at para 9 of the declaration: “For example, during the period I worked for [the] [World Concern] a foreign NGO after the tsunami, I continued to assist the LTTE”. That example leads into paras 10 and 11 in these terms:
10.I continued to assist the LTTE during LTTE events in 2005 as done in the past. The LTTE events were in LTTE controlled areas and I assisted in areas [KAD, AMB and KOKK] closer to where I resided.
11.I would also drive the LTTE owned vehicles during such LTTE events inside the LTTE controlled areas close to where I resided.
[emphasis added]
The first appellant says at para 12 of the declaration that in the same year, 2005 (a cross‑reference to the year mentioned in para 10 of the declaration), he was threatened several times on more than five occasions by members of the Karuna Group. He says he was stopped by members of the Karuna Group when he “used to pass through” an area known as “Arayampathy” which was where, he says, the Karuna Group had an office. He also says that members of the Karuna Group came to his home in search of him several times and he was forcibly removed from his home on at least three occasions in 2005. He says he was detained for more than one day on two occasions in 2005. He says he was beaten with sticks on two occasions when he was taken in by members of the Karuna Group for questioning. He says members of the Karuna Group repeatedly asked him why he was assisting the LTTE and warned him that he should not assist the LTTE. He says that during the period he was detained by Karuna Group members, he was not provided with sufficient food or water. He says that the situation gradually got worse as time passed by, with members of the Karuna Group “specifically targeting persons like me who assisted the LTTE”. He says that it was due to this reason, fearing that his life was in danger, that he decided to leave Sri Lanka with the help of an agent which enabled him to travel to Iraq on a work visa in January 2008. He says that he remained in Iraq during the period from January 2008 until January 2011 and did not return to Sri Lanka during the period he was in Iraq. He returned to Sri Lanka in January 2011. He says that the war had ended, he had heard that things were improving in Sri Lanka, and he believed that it was safe for him to return home. He says that after arriving from Iraq in January 2011, he soon realised that the situation had not improved, as members of the Karuna Group were still working closely with the government and were harassing and threatening to kill Tamil civilians for various reasons.
The matters of immediate relevance to the proposed ground of appeal (and also Ground 1A, as argued before the primary court) are said to be captured within the description of the claims as already mentioned, subject to references to things said by the first appellant in an interview with a department case officer on 7 September 2016 to be mentioned shortly. However, for completeness, these additional facts contended for by the male appellant in the declaration should be noted. On 29 June 2011, the first two appellants were married in Colombo. They resided there for three to four months. They returned to Batticaloa. Approximately one month prior to the elections in September 2012, the first appellant claimed to have begun to assist a Tamil party known as the Tamil National Alliance (“TNA”) which was perceived to be a Tamil political party that “supported LTTE ideology”. He says that he assisted the TNA by putting up posters, driving TNA vehicles when TNA party members canvassed for votes in Batticaloa. Prior to the September 2012 elections, the sister of the leader of the Tamil’s paramilitary group (Karuna’s sister) requested the first appellant for assistance during her election campaign. The first appellant refused to provide that assistance. He continued to assist the TNA until the September 2012 elections. Three days prior to the elections, the first appellant realised that he was being followed. He went to his cousin’s house. He was followed to the cousin’s house. He was afraid to remain in Sri Lanka and decided to leave by boat.
Apart from the declaration of 23 February 2016, the appellants emphasise matters contained in answers given by the first appellant in an interview between an officer of the Department of Immigration and Border Protection and the first and second appellants on 7 September 2016. An aspect of that interview is set out in an affidavit of Ms Noeline Harendran affirmed on 16 April 2020 filed on behalf of the appellants. Aspects of that interview are also the subject of an affidavit by Mr Julian Pipolo affirmed on 22 April 2020 relied upon by the Minister. Aspects of that interview are also the subject of an affidavit by Ms Aminata Conteh, filed on behalf of the appellants.
The appellants sought to rely on the affidavit of Ms Harendran at the hearing before the primary judge. However, leave to rely upon the affidavit was refused. However, I propose to grant leave to appeal from the interlocutory decision refusing the admission of the affidavit into evidence and I propose to treat the affidavit as evidence before me together with the affidavit of Mr Pipolo and Ms Conteh.
As to the section of the transcript of the interview of 7 September 2016 attached to Ms Conteh’s affidavit, the Case Officer (“CO”) sought to examine these matters and was given the following answers as interpreted by the Tamil interpreter (“TI”):
CO:OK so you said when you were a student so this is [your] A levels, and what year did you complete those.
TI:2004.
CO:OK so when you say here when I was a student I assisted [LTTE] during events such as [Martyrs] Day Pongu Thamil etc what dates were you involved in doing those.
TI:2004.
CO:So all of those activities were in 2004.
TI:I started, when I was, it started when I was a student, but later continued after the … war.
CO:OK so this is where I need the details so when you said that you continue in those activities, what just every year on those anniversaries?
TI:Yes.
CO:And what exactly did you do.
TI:I put [up] posters and hang banners.
The Case Officer then asked the male appellant a number of questions about on which side of the river was the school that he attended and established that the river passes through the Province of Batticaloa dividing up some of the districts with some villages on one side of the river and other villages on the other side of the river. The Case Officer then asked the following questions and received the following answers:
CO:OK so if your school was in on this side [of the river] in the army control area what was it how would it be compulsory then that a student would be able to be so openly supporting the LTTE doing [these] sorts of events because he said here it was compulsory that students assist the LTTE.
TI:Yeah that is because I’m a Tamil, … so I thought I have to do.
CO:So whether people were there LTTE officers that were going around saying you must but despite what did you feel you just felt compelled that you needed to participate.
TI:Yes all the time let’s get together and do it so I was involved sometimes they came and look for me.
The following further aspect of the transcript should be noted:
CO:So just to get an idea about your political opinions, do you support the LTTE movement in a political ideological sense.
TI:Not that way only for these functions and festivals I helped them to celebrate. …
CO:OK so in your statement claims you said “After the Karuna and his men defected I began to support the LTTE more than before”. What did you mean by that?
TI:Not only me, all the Tamil turned against Karuna because even though he was a Tamil he has betrayed the Tamil ethnic group that’s why we felt that we should help the LTTE.
CO:OK so but then how did you support the LTTE further as a result of Karuna’s defection.
TI:Yeah there wasn’t anyone to drive their vehicles so I was doing more driving taking people, transporting.
CO:OK so were they LTTE cadres or was this part of your work with World [C]oncern.
TI:Driving. Different. OK that is different for my job I did for someone else I did transporting sand.
CO:So that’s the type of work you did for World Concern.
TI:That also I did. … I did this also.
CO:When you said you were driving the trucks for the LTTE and driving people, can you give me some more detail about that.
TI:OK, you know that they are building these tombs, for the fallen soldiers, I had to transport people, workers, and sand.
CO:OK so again it was still just work in relation to those martyr day ceremonies.
TI:The same job I continue taking people, transporting.
CO:… so I just want to talk about the period of time around 2005 or in the lead up to why you went to Iraq. So what were the incident[s] that occurred with the Karuna group?
TI:Because I was helping LTTE, the Karuna group started to threaten me.
CO:Yes so, provide me with an example [of] a particular incident.
TI:… they threatened me you’re not going to help [the] LTTE.
CO:How did they threaten you.
TI:They blindfolded me [and took] me to their office and threatened me there, [saying] that if you continue to do this we will shoot you.
The first appellant said in the interview that this last conduct occurred about five times between 2005 and 2008. He also describes the beatings he says he received. He says that he was “blindfolded, beaten really [seriously], and they keep the gun on my head”. He said that he was beaten with the “butt of the gun, like a [baton] but it is not a [baton] it is just a thick stick”.
After this exchange, the Case Officer returned to the conduct of the first appellant that was said to have provoked this response from the Karuna Group and the following exchange occurred:
CO:OK so when they would bring you in was that just because you had been observed participating in some of those martyr ceremonies or assisting …
TI:[interjecting] building tomb[s] … because I was helping them they’ve seen it and that’s what they …
CO:Do you think though that maybe if you weren’t participating in those activities that you probably wouldn’t have come to any sort of attention from the Karuna group.
TI:I can’t comment on that I don’t know.
CO:So if you were to return to Sri Lanka would you continue to participate in those sorts of events.
TI:Tamil people, they need Tamil Eelam. [If] it is still prevailing there that demand … may happen.
The appellants also place emphasis on that part of the exchange on 7 September 2016 described in the affidavit of Ms Harendran. Ms Harendran is a Sri Lankan Tamil interpreter. She describes Tamil as her “mother tongue”. Ms Harendran has worked as a professional Tamil interpreter since 2007 providing interpreting services for entry interviews, protection visa interviews, before the Administrative Appeals Tribunal, the primary court and this Court.
Ms Harendran says that she listened to the audio recording of the interview of 7 September 2016 and compared the audio recording with a copy of the transcript. She says that she has a different view of what was said by the first appellant in Tamil at approximately one hour, 21 minutes and 36 seconds into the interview. Ms Harendran provides the following understanding of the exchange identifying what she understands was said by the interpreter in Tamil (described in the extract below as “I in T”) (by way of putting the question) and what was said by the first appellant in Tamil (“FA in T”) as translated by Ms Harendran:
CO:OK so but then how did you support the LTTE further as a result of Karuna’s defection.
I in T:After that you said you wanted to help more? What were you thinking?
FA in T:For whom?
I in T:For LTTE.
FA in T:When you mean more, they came this side and did stuff. There was not many people to drive the vehicles. This side [of the river] of course any time you can drive the vehicle. But then when you say driver, it’s a job. Mostly it was taking people and dropping them.
Ms Harendran notes in her affidavit that the interpreter is recorded as saying, for the last statement of the first appellant: “Yeah there wasn’t anyone to drive their vehicles so I was doing more driving taking people, transporting”.
For completeness on this topic, the transcript concerning the contentions of the first appellant as to what he said concerning what he did for the LTTE after Karuna’s defection, the version set out in Mr Pipolo’s affidavit ought to be noted as follows:
CO:Ok so, but then how did you support the LTTE further as a result of Karuna’s defection?
TI:Yeah there wasn’t anyone to drive their vehicles so I was doing more driving. Taking people, transporting.
CO:OK, so, were they LTTE cadres or were or was it part of your work with World Concern?
TI:Driving. Ok. Different Driving. That is different for, for my job I did for someone else I did. Transporting sand and (inaudible).
CO:Ok. So that, that’s the type of work that you did for World Concern?
TI:Yeah, but also I did, I did this also.
CO:Ok, so when you said that you were driving the trucks for the LTTE and driving people, can you give me some more detail about that?
TI:Ok. You know they are building those tombs, for the fallen soldiers. I had to transport people, workers, and sand.
CO:Ok, so again it was still just work in relation to those Martyrs’ Day ceremonies and …
TI:The same job I continued.
CO:Ok. Ok.
The ground of appeal sought to be relied upon is that the primary judge erred by failing to find that the IAA fell into jurisdictional error because it “misunderstood” and so “did not consider” the “nature” of the first appellant’s claims that he “provided assistance to and involvement with the LTTE during the period of the conflict between the LTTE and the Karuna Group”. The two particulars of that contention are these.
First, the first appellant claimed to have “transported LTTE cadres in the period of the conflict with the Karuna Group and in doing so provided logistical support for war activities against the Karuna Group”.
Second, in failing to apprehend the nature of the first appellant’s assistance to the LTTE against the Karuna Group in the period of the conflict, “the rational basis the [IAA] gave for its finding that [the] first appellant’s support for the LTTE in this period was ‘low level’ was undermined”.
The essential contention that is said to give expression to the IAA’s misunderstanding of the first appellant’s claim identified in the first particular at [29] of these reasons is that when the first appellant said at paras 9 and 10 of the declaration of 23 February 2016 that after the Karuna defection he began to “support the LTTE more than before” and that he “continued to assist the LTTE during LTTE events as done in the past” by assisting with LTTE events “closer to where I lived”, the IAA failed to understand that text as conveying that after the Karuna defection, the LTTE and the Karuna Group were on a “war footing” and the first appellant was not doing “just more of the same” as before. Thus, by saying that he would “drive the LTTE vehicles during such LTTE events inside the LTTE controlled areas close to where I resided”, the IAA ought to have understood that the first appellant was engaging with the LTTE to assist them on a war footing with the Karuna Group, and his willingness to drive LTTE vehicles was not just a continuation of support for the ceremonial events earlier described but rather is to be characterised as “logistical support” for the LTTE in its “war activities” with the Karuna Group.
The appellants emphasise in this context the translation offered by Ms Harendran by noting that the first appellant said that the LTTE came to his side (of the river) and “did stuff” and that there were “not many people to drive the vehicles” and mostly “it was taking people and dropping them”.
The contention is that the IAA failed to come to grips with the real context in which the first appellant’s declaration and answers to questions ought to be properly understood. The misunderstood context is said to be that the LTTE and the Karuna Group were at war and as from the moment of Karuna’s defection, the first appellant was, by driving the vehicles, assisting a party at war. The transition from assisting the LTTE with events in the pre‑Karuna defection period, to providing logistical support to the LTTE at war, is said to have been entirely misunderstood by the IAA (and the delegate).
There is no substance to this contention.
The IAA did not misunderstand the claim being made by the first appellant. It is no doubt true that after the defection of Karuna, the LTTE and the Karuna Group were engaged in serious hostilities. The first appellant did not say in his declaration that he contended for a well‑founded fear of persecution (that is, a fear of a real chance of serious harm) or a fear of suffering significant harm for the purposes of s 36(2)(aa) because, after the defection of Karuna, and the hostilities between the LTTE and the Karuna Group, he decided to actively support the LTTE with logistical support in its incursions and engagements with and into Karuna areas or that he began to provide logistical support to the LTTE as an aspect of the LTTE’s military campaigns against the Karuna Group. This transitional engagement was simply never put by the first appellant in his declaration or in his answers. In fact, in the declaration, the first appellant expressly says that he “continued to assist the LTTE during LTTE events as done in the past” and the utility of his assistance for these events (as done in the past) was that he could assist “in areas … closer to where I resided”. He said that he would drive the LTTE‑owned vehicles “during such LTTE events inside the LTTE areas closer to where I resided”.
All of this is a long way short of identifying a claim that the fault line of the Karuna defection caused the first appellant to become more engaged as a logistical combatant supporter for the LTTE in its war with the Karuna Group.
Nor does the statement concerning the translated text put forward by Ms Harendran rise anywhere near that height.
The contention does not emerge in what is said at [9] of these reasons; is inconsistent with the matters noted at [10] of these reasons; is not stated, in terms, or developed in the text of the declaration; is not in the text set out at [19], [20], [21], [23], [25] or [27] of these reasons.
At para 6 of the IAA’s decision, it provides a summary of its understanding of the claims made by the first appellant. It notes that from 2004 the first appellant provided assistance at a number of LTTE annual celebrations; that from 2005 the first appellant came to the adverse attention of the Karuna Group and on several occasions the first appellant was either threatened, abducted, interrogated, detained and/or beaten. It notes that from January 2008 until January 2011, the first appellant resided in Iraq on a working visa. It notes the claim that from January 2011 after his return to Sri Lanka, the Karuna Group was searching for the first appellant and it notes that from August 2012 until September 2012 the first appellant claimed to have provided assistance to the TNA. The criticism is that in this summary, the IAA fails to recognise that after the Karuna defection, the character and nature of the support provided by the first appellant was elevated to that of logistical support to the LTTE on a war footing in its campaigns against the Karuna Group. That aspect of the matter is otherwise described as the “integer” overlooked by the IAA.
Of course, the IAA’s reasons need to be read in their entirety. The claim as now put on behalf of the appellants was not identified and articulated before the delegate or the IAA in the way now put.
The IAA correctly comprehended the claim as formulated in the material before it.
At para 15, the IAA notes that the contended role of the first appellant was to transport people while driving LTTE‑owned vehicles and to put up posters and banners. It notes that he was not a member of the LTTE although as a Tamil he felt a duty to be involved with these LTTE events. It also notes the claims that as from 2005, the Karuna Group threatened him on more than five occasions and it notes his claims that the Karuna Group forcibly took him from his home on the claimed occasions and subjected him to the treatment he described in his material.
At para 25 the IAA describes those matters in a little further detail and concludes that the first appellant provided a reasonably coherent and consistent account of his involvement in these particular events across his entry interview and his application documents which suggested to the IAA that “he was recounting a genuine personal experience”. However, at para 26, the IAA found that evidence of his claimed interactions with the Karuna Group and his subsequent involvement in politics was unconvincing and that the first appellant’s evidence at the entry interview did not support a number of claims later made. The IAA at para 27 accepted that it was plausible that the first appellant was threatened, beaten and/or detained by the Karuna Group on a number of occasions on account of his support for the LTTE prior to his departure to Iraq in 2008. The IAA accepted that the first appellant participated “in activities” that supported the LTTE, and the country information cited by the IAA indicated that the Karuna Group had acted against the LTTE in the Eastern Province at the relevant time. However, at para 28, the IAA did not accept that the Karuna Group came looking for the first appellant after he returned from Iraq in 2011.
The observations at para 27 recognise a level of engagement with the LTTE in activities that supported the LTTE. In the context of the IAA’s recognition of the first appellant’s participation in activities supportive of the LTTE, it is not a fair reading of the IAA’s reasons to contend that it entirely overlooked an essential integer of the claim. As already mentioned, the contended integer was not at all clear from the material and was never articulated by the first appellant in the way in which the contention is now made.
In relation to the first appellant’s evidence about the TNA, the IAA found that evidence “unconvincing”. It is not necessary to set out the text of all of these findings. It is clear that the IAA was entirely conscious of the content of the declaration provided by the first appellant and the answers given by the first appellant to the various questions. There is nothing in the transcripts quoted in these reasons which suggests that the claim said to have been overlooked was made or that the IAA misunderstood the contentions put to it.
The primary judge also addressed these matters. Some of the contentions put on appeal were also put to the primary court and they are noted at [19], [20] and [21] of the primary judge’s reasons. It is not necessary to set those paragraphs out in these reasons. The primary judge discussed the contentions and made a number of observations about them at [24] of his Honour’s reasons. I can find no error in those observations at [24] of the primary judge’s reasons.
I am not satisfied that the core contention asserted on the appeal has any merit at all.
However, I propose to grant leave to rely upon the amended notice of appeal, as I have addressed the matter fully. As to Ground 1(b) of the amended notice of appeal, that ground necessarily fails having regard to the observations I have made concerning Ground 1(a).
Because the IAA did not fail to apprehend the claims as made, the contention that there was no rational basis for the findings of the IAA necessarily falls away.
Accordingly, the appeal must be dismissed with an order for costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 20 May 2022