BWC16 v Minister for Immigration

[2018] FCCA 890

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWC16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 890

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority – refusal of a Protection Visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 75, 473CA, 473DA(1), 473DB, 473DC(1), 473DD, 473GA, 473GB, 476(2), pt.7AA

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 58

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; (2010) 113 ALD 1; (2010) 262 ALR 569; (2010) 84 ALJR 154; (2010) 190 IR 437; [2010] HCA 1

Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577; (2010) 119 ALD 90; (2010) 274 ALR 487; [2010] FCAFC 159

Applicant: BWC16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 319 of 2016

Judgment of: Judge Kendall

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Perth

Delivered on: 21 March 2018

REPRESENTATION

Counsel for the Applicant: Mr M. Crowley

Solicitors for the Applicant: AUM Legal

Counsel for the First Respondent: Ms S. Oliver

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The applicant’s originating application filed 20 July 2016 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 319 of 2016

BWC16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. By application filed in this Court on 20 July 2016, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”), dated 1 July 2016. 

2. The IAA affirmed a decision of the delegate of the Minister for Immigration and Border Protection made on 5 May 2016 to refuse the applicant’s application for a Safe Haven Enterprise visa, referred to as a “SHEV”, made on 11 September 2015. 

3. The SHEV application was made on the basis that the applicant feared harm from Sri Lankan authorities due to his Tamil ethnicity and, in particular, his alleged political activities as a member of the Tamil United Liberation Front (the “TULF”).

4. The delegate refused the SHEV visa. Relevantly, the delegate did not accept that the applicant had campaigned on behalf of the TULF or that he was a member of the TULF. In addition, the delegate concluded that, as the security situation in Sri Lanka’s north had improved since the end of the military conflict, the applicant did not have a well-founded fear of returning to Sri Lanka on the basis of his Tamil ethnicity. The delegate found that the applicant was not a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth), (the “Act”), and was not a person in respect of whom Australia had protection obligations pursuant to s.36(2)(aa) of the Act.

5. The written reasons for the IAA’s decision were in evidence before this Court in a court book numbering 251 pages. The Court has reviewed that decision in detail.  The Court also had the advantage of well-written submissions prepared by both counsel for the respondents and counsel for the applicant.  It is noted that counsel for the applicant appeared in this Court pro bono.  The Court thanks him for his considerable assistance today.

6. In his amended application to this Court, the applicant relies on one ground, with particulars, as follows: 

   1. The Immigration Assessment Authority’s (IAA) decision was vitiated by jurisdictional error in that the IAA, in reasoning that because the appellant did not reflect the ‘history and milestones’ of the Tamil United Liberation Front… from 1976 to 2001 described in country information, the Appellant’s claim to membership of the TULF was not credible, and that a letter purporting to be from the TULF corroborating the appellant’s membership could be given little or no weight, went about its task irrationally or illogically, and denied the Appellant procedural fairness.

7. There are particulars in relation to this ground, as follows:

   Particulars

   1.1  The Appellant’s central claim was that he had been an active member of the TULF from 2005, and associated with the TULF from 2001. 

   1.2  The Appellant was asked at interview a range of questions about the TULF, to which the Appellant gave an account of the TULF’s contemporaneous activities and its purpose, for the period in which he claimed to have been involved.  To the question ‘When was [TULF] formed?’, the Appellant answered he did not know.

   1.2 (sic) The IAA found the claim to be not credible because the Appellant did not demonstrate ‘knowledge of the party’s history or any of its milestones [from 1976 to 2001], to the extent that would be expected of someone who was involved’ in the TULF between 2001 and 2012, where the Appellant had simply been asked, and said he did not know, when the TULF was founded, and otherwise gave an account of the contemporaneous activities and purpose of the TULF.

   1.3 The IAA then reasoned that because the Appellant’s claim to membership of the TULF was not credible, that a letter purporting to be from the TULF corroborating the Appellant’s claim could be given no or ‘little’ weight in light of the general country information that document fraud is prevalent in Sri Lanka.

8. The amended application is supported by an affidavit dated 2 December 2016 and filed in this court on 5 December 2016.  That affidavit produces a transcript of the departmental interview with the applicant on 20 November 2016 (“the SHEV Interview”). 

9. The first respondent objected to this affidavit on the basis that the delegate’s decision is not the subject of the application for review. Nor does this Court have jurisdiction to review the delegate’s decision by virtue of s.476(2) of the Act. It was argued that reference to the transcript invites the Court to impermissibly review the merits of the IAA’s decision.

10. The Court agrees that the Court cannot engage in a merits review. As correctly noted by the first respondent, even if the delegate erred, it does not follow that the IAA committed a jurisdictional error. The limits to be imposed, according to the first respondent, on a decision-maker’s jurisdiction depend on the statutory regime in question. Arguably, so long as the IAA did not breach Part 7AA in relying upon what the delegate did, there is no jurisdictional error on account of that reliance.

11. In relation to the transcript, the transcript was simply evidence that the IAA was permitted to, and did, assess.  What the IAA did was assess it in light of all of the evidence before it.  This is entirely appropriate in the circumstances of a review of this sort.  What the IAA chooses to highlight as factually relevant is an issue for that body.  The IAA examined the evidence before it, made a factual assessment and then made a determination as to credibility as it is permitted and, indeed, required to do.

12. The question then, before this Court, is did the IAA engage in some sort of jurisdictional error in doing what it did.  Having regard to the amended grounds of review and the applicant’s written submissions, what this Court is being asked to do is determine whether the IAA engaged in some sort of jurisdictional error when it considered whether the applicant was a member of the TULF – as its ultimate rejection of the applicant’s claims and other evidence (in particular, a letter from a senior member within the TULF that the applicant says is proof of his membership) was done on the basis that he was not a member of the TULF.

Synopsis

1. For the reasons that follow this application for judicial review fails and is accordingly dismissed. 

The IAA Decision

1. As noted above, on 24 May 2016, a delegate of the Minister made a decision refusing to grant a SHEV to the applicant.  

2. The delegate’s decision was then referred to the IAA, pursuant to s.473CA of the Act. The IAA affirmed the delegate’s decision not to grant the applicant’s SHEV.

3. Before summarising what the IAA said, it is important to note that this occurred within the context of a “fast track” application.  That is important because it affects what the IAA can and cannot do and it determines what is and what is not jurisdictional error.

4. Pursuant to s.473DB of the Act, the IAA is to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant. However, s.473DC(1) of the Act permits the IAA to get any documents or information that were not before the Minister when the Minister made the decision under s.65 of the Act and the IAA considers may be relevant. Despite this, the IAA cannot consider this new information unless there are exceptional circumstances to justify considering the new information: see s.473DD of the Act.

5. Division 3, Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this division, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that authority.

6. Here, in relation to this matter, the IAA, noting the information before it, summarised the applicant’s claims for protection as follows at paragraph 5:

   5. The applicant’s claims are contained in the information referred to the IAA.  They can be summarised as follows: 

   The applicant began working as a storekeeper […].  In […] his boss at the store, [who was involved in the TULF], was shot and killed.  The applicant continued working […] and while there, made connections with people who worked for the TULF.  After […] he worked part time at the shop so he could concentrate on work with the TULF. 

   He was harassed, threatened and beaten because of his involvement with the TULF.  Because of the work he was doing for the TULF, he had problems with the Criminal Investigation Division (CID) of the Sri Lankan police.  Three or more times he had threatening phone calls from the CID saying that he should not participate in any elections. 

   On 20 July 2012 he was forcibly detained by four CID officers who took him to an abandoned railway station where they beat and kicked him.  He was threatened with disappearance unless he ceased his work with the TULF.  He fears assault, kidnapping and murder at the hands of the CID on the basis of his political views and involvement with the TULF. 

   The applicant claims he is persecuted because of his Tamil ethnicity, as Tamils do not have freedom to live in Sri Lanka. 

   Since he left Sri Lanka the Eelam People’s Democratic Party (EPDP) is trying to make the Tamil people move from his village.  He heard from his wife that they have demolished the community centre and the primary school and have threatened to kill all of the Tamil men.

   He was injured by a bombing carried out by the Sri Lankan Army on 6 January 2008.  He was out the front of his house in Jaffna when the army attacked and bombed the house next door.  His injuries caused permanent loss of vision in his left eye. 

   He is unable to rely on the Sri Lankan government for protection because the people persecuting him are the CID, who kill people and bury them in unknown places.

7. The IAA then assessed all of the evidence before it, including the transcribed recording that I referenced earlier in this judgment.  In relation to the applicant’s involvement in the TULF, this Court notes the IAA’s findings, as follows:

   7. At the entry interview and at the SHEV interview, the applicant was inconsistent in the name used to describe the political party to which he claims to have belonged. After the SHEV interview the applicant was asked to clarify in writing the inconsistency and responded that due to his limited English proficiency he was reliant on interpreters at interviews and the discrepancies may have arisen from their lack of contextual knowledge of Sri Lankan politics. I accept that name discrepancies may have been caused by misinterpretation or transliteration and find that for the purposes of my decision, references by the applicant to the Thamilar Viduthalai Kootani or Thamilar Viduthafai Group are references to the Tamil United Liberation Front (TULF).

   8. At the SHEV interview the applicant stated that his involvement with the TULF commenced in 2001 and that in 2005 he became more active and registered with the party. When asked at to explain his role in the TULF, the applicant described it as campaigning, where he would 'talk to the people for their support and their vote' and 'discuss with them about the service and garner their support'. When asked at the SHEV interview to describe the party's polices and initiatives, the applicant spoke about service to the people, resettlement of displaced persons and helping and assisting senior citizens. The applicant was asked to outline the history of the TULF and what it stands for. In response the applicant stated that it started in Jaffna and works for the welfare of Tamils affected by internal conflict. He stated he did not know when it was formed and that he was unaware of the party's history.

   9. While the applicant spoke broadly about the TULF's aims, he did not demonstrate knowledge of the party's history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012.  According to country information, the TULF was initially organized as the Tamil Liberation Front in 1976 by a number of Tamil groups, including the Ceylon Workers' Congress, the All Ceylon Tamil Congress, the lllankai Tamil Arasu Kachchi, the National Liberation Front and the Muslim United Front. The TULF Secretary General was killed and the party President seriously wounded in a July 1989 attack attributed by some reports to a 'rogue cell' of the LTIE. In October 2000 it won five seats in Parliament and in 2001 it was a prime mover in forming the TNA in opposition to President Kumaratunga.  If the applicant had been involved  with the TULF from 2001 to 2012 to the extent that he claims, I consider it reasonable to expect that he would articulate some of these key events. As he did not, I do not accept as credible the applicant's claimed involvement with the TULF. I find that the applicant was not a member of or involved with the TULF, as claimed and did not campaign on behalf of the TULF in elections.

   10. I note that the applicant has provided an undated letter of support purportedly signed by the Secretary General of the TULF attesting to the applicant's TULF membership, describing him as 'one of our longstanding active members in our party' who has done 'his utmost services to the entire satisfaction of the superiors of the party.' Country information from DFAT and the UK Home Office is that document fraud is prevalent in Sri Lanka. After considering my concerns about the credibility of applicant's claimed involvement with the TULF, together with the prevalence of document fraud in Sri Lanka, I place little weight on this letter as evidence of the applicant's membership of or involvement with the TULF.

   11. The applicant claims that due to his TULF activities, he was harassed by CID officers. He claims also to have been beaten and kicked by CID officers who abducted him and took him to an abandoned railway station. I have found that the applicant was not a member of the TULF, as claimed and did not campaign on behalf of the TULF in elections. In light of this I do not accept that he was of any interest to the Sri Lankan authorities, including the CID, due to claimed TULF activities.

8. The IAA then undertook a detailed and, in this Court’s opinion, thorough analysis of all of the applicant’s protection claims (including fear related to being a Tamil, claims in relation to an eye injury, fear of the EPDP and harm resulting from being a failed refugee) rejecting all of them and finding (at paragraph 35) that:

   a)the applicant did not meet the requirements of the definition of refugee in s.5H(1); and

   b)the applicant does not meet s.36(2)(a) of the Act.

9. Before this Court, the applicant took no issue with any of these findings, but for those that relate to his involvement in the TULF and any connections caused thereby and the harms that would flow from that involvement.  The applicant’s concerns in this regard are the focus of his application before this Court. 

10. Relevantly, the Court notes the IAA’s finding in relation to the applicant’s claims as they relate to his involvement with the TULF:

    14. I have found that the applicant was not a member of or involved with the TULF, as claimed and that he did not campaign on behalf of the TULF in elections. In light of this I have found that he was not of any interest to the Sri Lankan authorities, including the CID, due to claimed TULF activities. As a result I do not consider that the applicant has a well-founded fear of persecution from the Sri Lankan authorities, including the CID.

11. In terms of the applicant’s complementary protection claims, the IAA noted that the applicant did not make specific claims to complementary protection separate from those put forward in relation to the refugee criteria.  However, for the same reasons as above, the claim was also rejected. In this regard the Court notes the IAA’s findings as follows:

    38. I have found that the applicant was not a member of or involved with the TULF, as claimed and that he did not campaign on behalf of the TULF in elections. In light of this I have found that he was not of any interest to Sri Lankan authorities, including the CID, due to claimed TULF activities. For these reasons I do not consider that the applicant will face a real risk of significant harm from the Sri Lankan authorities, including the CID.

    47. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

12. The IAA then advised the applicant of its decision by letter. That letter attached a copy of the IAA’s decision and a fact sheet about those decisions. 

13. The applicant then filed an application in this Court seeking review of the IAA’s decision, citing one ground of review.  It is that ground of review that I must analyse today.  As noted, that ground of review focuses on the IAA’s assessment of whether the applicant was a member of the TULF.  No other concerns in relation to any of the IAA’s other findings are in issue before this Court.

Decision

1. The applicant seeks an order in this Court for the issue of constitutional writs.  In order for these writs to be issued, the applicant needs to demonstrate that the IAA fell into jurisdictional error in one of the ways stated in the High Court decision in Craig v State of South Australia [1995] HCA 58 or in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1. Here, the applicant argues that the IAA’s findings in relation to his involvement in the TULF are illogical and irrational.

2. In my view, the applicant has failed to show that the IAA fell into jurisdictional error.

3. In relation to what is deemed to be jurisdictional error as it pertains to the applicant’s involvement in the TULF, the applicant submitted detailed written submissions dated 15 February 2017. The Court notes in particular paragraph 6 and paragraphs 9 to 15 in these written submissions:

   6.  Two key principles dispositive of this case were concisely explained by Jacobson J in Minister for Immigration & Citizenship v SZOCT:

   Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: [Minister for Immigration & Citizenship v] SZLSP [(2010) 272 ALR 115] at [39].

   Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J,5 is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

   9. The IAA’s reasoning is premised upon an assumption about what a member of the TULF would know about the provenance of the organisation.

   10. That can be seen from the use of the phrases:

   10.1 “knowledge of the party's history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012”, and;

   10.2 “I consider it reasonable to expect that he would articulate some of these key events”.

   11. The IAA’s use of the passive tense is apt to highlight the absence of any basis in the material for the IAA’s assumption, while also concealing that the IAA was in substance introducing its own view of what a member of the TULF would know about the provenance of the TULF. The IAA’s approach was arbitrary. It had no foundation, and was therefore illogical or irrational. It should not be overlooked that the evidence was that the Applicant was a shopkeeper8 with a Year 10 education.

   12. As a matter of fact, there was evidence in the form of a document purporting to be a letter from the TULF confirming the Applicant’s membership of the TULF.The Applicant does not contend that it was not open to the IAA to reason that the Applicant’s credibility was so damaged that the letter could also be rejected as fabricated. On the other hand, it was irrational to draw an adverse inference as to the Applicant’s credibility on the basis of an assumption without any material basis which conflicts an inference compelled by available evidential material, and it was irrational to dismiss the document on the basis that it compels an inference which competes with one created by an assumption without any material basis.

   13. In Minister for Immigration & Citizenship v SZLSP,12 Kenny J said that:

   37.     The authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I  accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the tribunal’s written reasons typically represents a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

   38.     Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.

   39.     If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.

   14. This was a case in which the IAA did proceed from a premise that all TULF members would have a minimum standard of knowledge about the provenance of the TULF. Moreover, there was an explicit statement that that was what the IAA was doing when it referred to a standard of ‘the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012”. Another criticism to make about this the standard is that it was circular. In reality, it was simply the IAA introducing its own view of the minimum standard of knowledge.

   15. In this particular case, the IAA expressly applied the minimum standard of knowledge, being the “knowledge of the party's history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012’. Furthermore, there was no basis for concluding that a person such as the Applicant, a shopkeeper with a Year 10 education, would have known the history of the TULF prior to any involvement of his, and well prior to any significant involvement.

1. The Court has noted the substance of these submissions and, in particular, the reference to case law, again highlighted today by counsel for the applicant.

2. The first respondent in turn argued, relevantly, in written submissions dated 20 February 2018, as follows:

   17. …the First Respondent submits that the finding of the IAA that the Applicant was not a member of or involved with the TULF was open to it on the evidence before it, after its review and assessment of the evidence within the confines of Part 7AA. The Applicant had claimed to be involved with the TULF for over 10 years (between 2001– 2012). He claimed to be active within the party and, it was as a result of his activism, that he came to the attention of the Sri Lankan authorities. The Applicant’s own claims forms a foundation for the IAA’s conclusion that inadequate knowledge is held. In other words, contrary to the Applicant’s contentions that the IAA imposed an arbitrary minimum standard of knowledge, the IAA proceeded on the pragmatic approach of assessing whether the level of knowledge actually displayed by the Applicant corresponded with the level of knowledge likely to be possessed by a person who had (as he claimed) been actively involved with a particular organisation for over a decade, actively promoted the organisation to others. An analogous approach was endorsed by Justice Bromwich at [65] of Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159.  The IAA’s findings could not be said to lack a logical connection with the evidence or to otherwise be illogical or unreasonable: Minister for Immigration and Citizenship v SZMDS [2000] HCA 16 at [51].

   18. It was also open to the IAA (as sole arbiter of the facts) to give little weight to the letter purportedly from the TULF and purportedly confirming the Applicant’s involvement in that political party; particularly given the country information to the effect that document fraud is prevalent in Sri Lanka.

3. Having reviewed the evidence before it and the submissions advanced, I do not find there to have been jurisdictional error on the part of the IAA. 

4. In relation to the IAA’s assessment of the applicant’s involvement in the TULF and the credibility findings that flow from an assessment of whether the applicant was actually involved in the TULF, and noting that this application is a fast-track application, what the IAA did here was entirely reasonable in light of the evidence before it.  The applicant here claimed to be an active member of the TULF for more than a decade.  He also claimed to have campaigned for the TULF.  That evidence stood next to country information that revealed an organisation of prominence in Sri Lanka.  To paraphrase Jacobson J in Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159 at paragraph 65, the IAA took all of this evidence and then took the pragmatic approach of assessing whether the level of knowledge actually displayed by the applicant corresponded with the level of knowledge likely to be possessed by a person who, like the applicant, claimed to be an active member of the TULF and, importantly, whether the level of knowledge disclosed gave support to the applicant’s claims or, alternatively, suggested that he should be disbelieved. Here, on the evidence, the applicant was disbelieved. He was disbelieved because of his own evidence. This is best evidenced when the IAA says:

   If the applicant had been involved with the TULF from 2001 to 2012 to the extent that he claims, I consider it reasonable to expect that he would articulate some of these key events.

5. I find that there was a rational and logical connection between the IAA’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.  The IAA relied on the applicant’s own evidence of active involvement and the relevant country information and then assessed the significance of the applicant’s actual knowledge of the TULF.  It found the applicant lacking in this regard.  In so doing, the IAA conducted a legitimate exploration.  It did not make a determination by reference to a preconceived minimum standard of knowledge. 

6. The IAA did not find that all people who say they belong to the TULF should know everything about that organisation. Rather, it found that someone, like the applicant, whose own evidence was that he was “active” in the TULF might reasonably be expected to know more about the organisation than the applicant ultimately claimed to.  An assessment was made that the applicant was not credible and did not belong to the TULF.  This credibility finding then allowed the Tribunal, rightly so, to reject the letter that purported to evidence his involvement in the TULF.  It was entirely open to the IAA to reason that the applicant’s credibility was so damaged that the letter could also be rejected on the basis that it was fabricated. 

7. On the evidence, these were findings that were entirely open to the IAA. 

8. Overall, I see no error in relation to the IAA’s findings, its reasoning and its ultimate conclusions.  All findings were open on the evidence before it.  They were reached on valid grounds.  The decision to affirm the delegate’s decision was perfectly sound. There was nothing that can be referred to as irrational or illogical. 

9. The application for judicial review is dismissed. I order the applicant to pay the Minister’s costs fixed in the sum of $5,800.00.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date: 17 April 2018