CEP17 v Minister for Immigration

[2017] FCCA 3124

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEP17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3124

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – whether the Authority made unreasonable findings – whether the Authority failed to properly consider an integer of the applicant’s claims – whether there was a failure to provide the Authority with all relevant information – no jurisdictional error identified – amended application dismissed.

Legislation:

Evidence Act 1995 (Cth), s.191
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 473FB, 476

Applicant: CEP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1582 of 2017

Judgment of: Judge Street

Hearing date: 12 December 2017

Date of Last Submission: 12 December 2017

Delivered at: Sydney

Delivered on: 12 December 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Stephen Hodges Solicitor

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1582 of 2017

CEP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 24 April 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise (Subclass 790) (“SHEV”) visa. The applicant arrived in Australia as an unauthorised maritime arrival on 13 November 2012.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm by reason of being a Tamil from the Eastern Province of Sri Lanka as well as identifying that his father and brother were shot dead by the Sri Lankan army in 1980, and that he began work as a motorcycle mechanic in 1991 at a garage frequented by Liberation Tigers of Tamil Eelam (“LTTE”) members. The applicant alleges that he was detained and beaten by the army in the vicinity of his work in 1995 and carried scars from that incident.

3. The applicant alleges he lawfully went to Qatar from 1995 to 1999 and then returned to Sri Lanka. The applicant alleges he relocated to a village in an LTTE-controlled area and resumed work as a mechanic, initially from home, and, later, from a mechanic garage. The applicant alleges he was caught in round-ups by the Sri Lankan army and was taken to the army camp for interrogation and assaulted and that he was ordered to report to the camp weekly, and that if he failed to report, the army would take him from his home overnight and detain him and assault him.

4. The applicant alleges when peace talks concluded in 2004, the Sri Lankan army withdrew from his village, and he began working at a different mechanic garage. The applicant alleges that his work included repairing motorcycles for the LTTE and that he could not refuse to undertake that work for the fear that the LTTE would harm him.

5. The applicant alleges that hostilities resumed in 2006, and the Criminal Investigation Department (“CID”) shot the applicant’s former employer and began searching for the applicant. The applicant alleges the CID searched his workplace, but he was absent, and when the CID searched his home, the applicant hid and then escaped by climbing over a fence and that the CID abused and assaulted his wife.

6. The applicant alleges he went to Malaysia to escape from the CID, but returned to Sri Lanka in 2009 because his family told him it was safe. The applicant alleges that the CID have a file on him which means he will be killed and that the CID began looking for him once they learned the applicant had returned to Sri Lanka. The applicant alleges all the mechanics who trained with his former employer had been killed.

7. The applicant alleges the CID came to the applicant’s workplace and that the CID questioned him at gunpoint for information about the CID. They threatened to kill him but left without harming him due to his workplace being crowded and that he made a complaint to the Human Rights Commission and the Justice of the Peace. The applicant alleges he went to live with a distant relative in Colombo until he was able to depart Sri Lanka illegally in November 2012. The applicant alleged the CID continued to look for him at his former workplace and at home and that the CID have threatened his son.

8. On 23 September 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa under the Act.

The Authority’s Decision

1. On 28 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review and explaining that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information.

Material before the Authority

1. The Authority’s reasons identified the background to the visa application and identified having regard to the material referred to the Authority under s 473CB of the Act. Relevantly, s 473CB(1)(c) provides as follows.

   (1)  The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (c)  any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

2. Section 473FB provides a power to make a practice direction not inconsistent with the Act, relevantly, as follows:

   (1)  The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

   (a)  the operations of the Immigration Assessment Authority; and

   (b)  the conduct of reviews by the Authority.

   (2)  Without limiting subsection (1), the directions may:

   (a)  relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or

   (b)  set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

   (3)  The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.

   (4)  If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

   (5)  The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

3. There has been tendered in the present case a copy of the Practice Direction issued on 22 September 2016 that takes effect from 30 September 2016 and identifies it is made pursuant to s 473FB of the Act and expressly refers to giving an electronic form in respect of paragraph 1 for each fast track reviewable decision referred to in s 473CA any material that is in the possession of the Secretary of the Department and is considered to be relevant to the review under s 473CB(1)(c).

4. The reference to in electronic form is of significance because paragraph 2 relevantly provides as follows:

   2. Where the written statement of a decision to refuse a protection visa that is referred to us for review contains a reference to a document comprising country of origin information, then:

   a) if the document is available to us in CISNET – the document in CISNET will be taken to be review material given to us by you pursuant to paragraph 473CB (1)(c) of the Act; or

   b) if the document is not available to us in CISNET – you must give the document to us in electronic form along with any other material that is in your possession or control and is considered (at the time the decision is referred to us) to be relevant to the review.

5. The reference to CISNET is an identification of an electronic site from which the document referred to in the decision is then capable of being accessed electronically by the Authority. It is perfectly proper for the Authority in this era to be receiving information by electronic digital means and being able to access information in electronic form. This Court generally conducts its hearings using electronic data only, without paper unless written material is tendered and accesses authorities online or by hyperlink.

6. The ability to access digital information through hyperlinks, authorities, and legislation is the modern way in which hearings are capable of being conducted whether by this Court, or other bodies. The use of electronic digital equipment for the conduct of hearings and reviews is entirely consistent with modern expectations of efficiency and accountability of an administrative body or, for that matter, a Court exercising statutory power, or exercising judicial power. The Authority identified taking into account a further DFAT report dated 24 January 2017, consistent with s 473DE(3)(a).

Refugee assessment

1. The Authority summarised the applicant’s claims and set out the relevant law. The Authority referred to the applicant’s father and brother having been shot dead in 1980 and accepted that they were shot by the Sri Lankan Army.

Motorcycle mechanic

1. The Authority referred to the applicant’s claims he would be targeted for harm because he worked as a motorcycle mechanic. The Authority referred to there being several aspects to that claim. The Authority referred to the applicant at the entry interview referring to Sri Lankan authorities having harmed him in the past because he was in the vicinity of a bomb attack while nearby his workplace. The Authority made reference to the fact the applicant made no reference to the bomb blast or being taken to a camp in the Safe Haven Enterprise Visa statement. The Authority made reference to the applicant referring to the bomb blast being the reason for Sri Lankan authorities targeting motorcycle mechanics, which the applicant alleged became his motivation for going to Qatar.

2. The Authority identified that it was willing to accept that the applicant was tied to a tree and assaulted in the way he describes in the Safe Haven Enterprise Visa interview and in his statement. The Authority was not satisfied, however, that the incident was related to the applicant’s work as a motorcycle mechanic. The Authority made reference to the applicant’s evidence in the Safe Haven Enterprise Visa statement, being the first motorcycle bomb attack occurred only after that assault. The Authority did accept that the assault was violent, degrading and resulted in particular scarring.

3. The Authority referred to the applicant having consistently claimed that the LTTE employed motorcycle bombs, making the Sri Lankan authorities suspicious of all motorcycle mechanics. The applicant claimed that the Sri Lankan authorities have killed his former employer and all his former colleagues who worked under that employer. The Authority noted the applicant claimed the Sri Lankan authorities had killed other motorcycle mechanics, too. The Authority noted that the delegate was unable to locate country information supporting the applicant’s claims motorcycle mechanics were targeted for harm in the mid-1990s but did locate a news report of an incident in 2006 near the applicant’s home village.

4. The Authority noted that the applicant claimed at the Safe Haven Enterprise Visa interview that the report related to his former employer. The Authority identified having put some weight on that report as supporting the applicant’s claims, but noted that the report does not indicate that the applicant’s former employer was shot on suspicion of helping the LTTE.

5. The Authority made reference to the applicant claiming that he did repair work for the LTTE, although he described that as being forced to do repair work for free for the LTTE. The applicant claims that his name is on a CID kill list. The Authority found that the applicant not referring consistently to which branch of police were threatening him undermines the credibility of his claims. The Authority considered it implausible that the CID or Special Task Force (“STF) had been searching for the applicant for approximately three years but did not locate him until October 2012.

6. The Authority considered it implausible that the STF and CID would threaten the applicant at gunpoint at his workplace but then leave without taking any further steps because his workplace was in a busy location. The Authority found this did not explain why the STF or CID did not arrest and detain the applicant. The Authority found the explanation by the applicant not to be persuasive. The Authority considered it implausible a member of the CID or STF would advise the applicant’s brother that the applicant’s name was on the kill list. The Authority considered these implausible aspects of the applicant’s evidence to be reasons to reject as not credible that the applicant’s name was on a kill list or that the CID and STF were searching for him.

7. The Authority referred to material provided by the applicant in support of his past harm. The Authority accepted that the applicant’s travel was in part motivated by a worsening security situation and in part motivated by an opportunity to work overseas. The Authority gave weight to the applicant’s willingness to return to Sri Lanka on both occasions due to changes in the general circumstances in Sri Lanka as a consideration which undermines his claims that he was subject to any individual targeting for harm by the Sri Lankan authorities for reason of his own personal characteristics including his work as a motorcycle mechanic.

8. The Authority did not accept that the applicant was able to pass through the airport or checkpoints with the assistance of an agent. The Authority considered the applicant’s travel history undermined the credibility of his claims that he was targeted for harm by the Sri Lankan authorities as someone on a kill list.

9. The Authority accepted the applicant’s employer was shot dead but was not satisfied that was because of any link between the employer and the LTTE, his work, or to the applicant. The Authority did not accept that all the applicant’s former colleagues had been shot. The Authority considered it implausible that Sri Lankan authorities came to the applicant’s workplace only one time and to his home only one time if he was of genuine interest to them due to his work as a motorcycle mechanic. The Authority considered it implausible that the applicant would be so easily able to escape from his home and found the applicant’s evidence as to how he did that to be vague. The Authority rejected that the Sri Lankan authorities attempted to arrest or shoot the applicant just prior to his going to Malaysia. The Authority found the applicant had greatly exaggerated the personal risk to him in an attempt to explain his going to Malaysia for work, as well as to avoid general, not specific, harm to him from the Sri Lankan authorities. The Authority did not accept the CID assaulted the applicant’s wife prior to his going to Malaysia.

10. The Authority rejected the applicant was genuinely a person of interest to the Sri Lankan authorities. The Authority rejected the applicant was able to travel to and from Qatar and Malaysia without being questioned or detained because he used an agent.  The Authority rejected that the applicant made a complaint to any human rights organisation. The Authority rejected the applicant’s name was on a kill list. The Authority rejected that the CID or STF were searching for almost three years after the applicant returned to Sri Lanka from Malaysia. The Authority rejected that the applicant was threatened at gunpoint at his workplace in October 2012. The Authority rejected Sri Lankan authorities came to the applicant’s home to shoot him in October 2012.

11. The Authority rejected the applicant was in hiding in Colombo. The Authority rejected that the applicant was of any ongoing interest to Sri Lankan authorities. The Authority rejected that the CID or STF have been looking for the applicant after he left Sri Lanka, and rejected that the CID or STF have threatened any of the applicant’s family. The Authority considered that the applicant had fabricated these parts of his claim so as to exaggerate the level of risk to him if he returns to Sri Lanka.

Tamil from the Eastern Province

1. The Authority was not satisfied the applicant has a profile which would bring him to the attention of the Sri Lankan authorities as someone connected to the LTTE. The Authority was not satisfied the applicant faced a real chance of serious harm from the Sri Lankan authorities for an imputed pro-LTTE or anti- Sri Lankan Government political opinion and/or because of his age, he is a Tamil, he was born in the Eastern Province, he lived in an LTTE-controlled area, his father, brother and former employer were killed, he worked as a motorcycle mechanic and did repair work for the LTTE, he was rounded up and assaulted by the army and/or because he had reporting requirements now or in the reasonable foreseeable future if he returns to Sri Lanka.

Failed asylum seeker

1. The Authority was not satisfied that the Sri Lankan authorities have any ongoing suspicion in relation to the applicant. The Authority was not satisfied the applicant faces a real chance of harm from Sri Lankan authorities due to being a failed asylum seeker now or in the reasonable foreseeable future if he returns to Sri Lanka.

Illegal departure

1. The Authority accepted the applicant departed Sri Lanka without a passport and, for that reason, committed an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IAEA”). The Authority found that any questioning and detention the applicant may experience would be brief and would not constitute serious harm as defined in that Act.

2. The Authority found the provisions of the IAEA are laws of general application that apply to all Sri Lankans equally and are not discriminatory on their terms, nor does the country information support that they are applied in a discriminatory manner or that they are selectively enforced. The Authority was satisfied that any process or penalty the applicant may face on his return to Sri Lanka because of his illegal departure would not constitute persecution under the purpose of the Act.

3. The Authority found the applicant failed to meet the definition of “refugee” in s 5H(1) and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Authority was not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm and found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. The grounds of the amended application are as follows:

   Ground 1

   The IAA fell into legal error at [CB 162. 141 as its findings regarding the employer’s cause of death was unreasonable and not open to it.

   Particulars

   I. The applicant claimed the Sri Lankan authorities were suspicious of all motor cycle mechanics as the LTTE employed motorcycle  bombs  [CB 162. 14).

   2. The IAA accepted that the applicant was targeted for questioning due to his work as a motorcycle mechanic and the use of motorcycle bombs by the LTTE”[CB 164. 26].

   3. The applicant claimed that his former employer was killed by the CID [CB 160. 6].

   4. At [CB 162.14], the IAA noted that the delegate was able to locate a news report from 2006 [CB 141. 726] which the applicant claimed, was related to the death of his former employer.

   5. Although the IAA put “some weight” on the report the IAA rejected the applicant's claim on the basis that the report did not explicitly state that the applicant's former employer had been killed due to perceived links to the LTTE [CB 162.14].

   6. The IAA did accept that the applicant's employer was shot dead, but was not satisfied that it was because of any link between the employer and the LTTE [CB 165. 27].

   7. The report relied by the IAA refers to “GoSL agents" having murdered a mechanic, that mechanic being the applicant's employer.

   8. The IAA in its assessment, failed to consider that it was agents of the state (GoSL) who had murdered the applicant's employer.

   9. The IAA in its assessment, failed to consider that news reporters may have been hesitant to expressly state and publish the fact that the GoSL agents killed the applicant's employer due to perceived LTTE links at a time when the war was going on.

   Ground 2

   The IAA failed to assess a Particular Social Group claim that was raised bv the applicant.

   Particulars

   1. The applicant claimed the Sri Lankan authorities were suspicious of all motor cycle mechanics as the LTTE employed motorcycle bombs [CB 162. 14].

   2. The applicant in his statement of claims stated “Afterr this incident all mechanics were targeted bv the SLA as they were blamed” [CB 67. 17].

   3. The delegate stated at [CB 127] “Central to the applicant's claims is that he was a motor mechanic in [X] between 1990 and 1995, and then on and off …”

   4. The IAA accepted that the applicant “was targeted for questioning due to his work as a motorcycle mechanic and the use of motorcycle bombs by the LTTE [CB 164. 26].

   5. The IAA states at [CB 161. 11]. “The applicant claims if he returns to Sri Lanka he will he targeted for harm because he worked as a motorcycle mechanic”.

   6. At [CB 166. 34] the IAA states that it was not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities for several reasons including the reason that “he worked as a motorcycle mechanic, he did repair work for the LTTE”.

   7. Australian Courts have emphasised that the primary focus of this Convention ground is on what a person is - a member of a particular social group - rather than what a person has done. See Morato v MILG EA ( 1992) 39 FCR 401 at 405.

   8. The IAA had before it a news report that the delegate was able to locate [CB 140].

   9. Though the report that the delegate was able to locate in its entirety has not been included in the court book the applicant has been able to obtain the report relied by the delegate and the IAA (refer Affidavit filed on behalf of the applicant).

   10. The report refers to the following incidents relating to “mechanics” and “garage owners” who were murdered by the SLA / GoSL.

   a. 726. May 23, 2006: Amparai - Two motorbike-riding gunmen. GoSL agents by gunfire murdered a motor mechanic.

   b. 952. October 21, 2006: Jaffna - owner of a garage the report states murdered by gunfire separately by unidentified men acting as GoSL agents

   c. 653. April 19, 2006: Jaffna - Sri Lanka Army (SLA) soldiers murdered by gunfire 5 Tamil civilians close to an SLA 51-1 Division camp located at Vatharavathai, 13 km north-east of Jaffna. The soldiers took the five civilians. a Municipal Council official, an electrical mechanic, ... and later brought them out to an open terrain and gunned them down.

   d. 876. September 3, 2006: Jaffna - Two Tamil civilian males were murdered by gunfire separately by unidentified men acting as GoSL agents riding on motorbike in the northern Jaffna. Sundav. Baskaran Suresh, 31, owner of a garage at 5th Cross Street in Jaffna, was murdered around 11 a.m.

   e. 881. September 4, 2006: Jaffna - Motorbike riding Sri Lanka Army (SLA) men in civil clothes shot and murdered three Tamil civilian males in three separate shootings in Jaffna Monday. An owner of a garage 100 meters away from an SLA sentry point

   a. 1027.December 2, 2006: Jaffna - The owner of a vehicle repair facility in Duch Road Chavakacheri in Thenmaradchy district was murdered by gunfire by two gunmen riding in a motorbike. The murderers were GoSL agents

   a. 585. December 27, 2005: Kilinochchi - The young Tamil civilian female who was murdered by gunfire by the SLA soldiers and dressed up with denim trousers last Saturday …Two bodies were earlier identified as belonging to a night watcher and a garage worker in Kottady.

   11. The IAA failed to assess if the applicant would face harm due to his membership of a particular social group of mechanics, this claim was raised squarely by the applicant. and even if we are wrong on this this claim arose on the facts that did not require constructive or creative activity by the decision-maker.

   Ground 3

   The Secretary failed to provide the IAA a complete copy of the 2006 report [CB 128. footnote 8] that the delegate had obtained and was relied by the delegate to reach an important inference, thereby breaching section 473CB of the Migration Act.

   Particulars

   1. Section 473 CB of the Migration Act states:

   (1)  The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)  a statement that:

   (i)  sets out the findings of fact made by the person who made the decision; and

   (ii)  refers to the evidence on which those findings were based; and

(iii)  gives the reasons for the decision;

(b)  material provided by the referred applicant to the person making the decision before the decision was made;

(c)  any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;…

2. The delegate referred to country information (a report that she had obtained and the reference to the report was footnoted at [CB 128].

3. The reference to the report at footnote 8, appears to be a complete reference to the source relied by the delegate to make findings regarding an important integer of the applicant's claims [CB 128].

4. The Court Book refers to two pages of the report relied by the delegate [CB 140] and [CB 141].

5. Though the Secretary could be said to have met s473CB (1) (a) (ii), it could not be said that the Secretary had met its mandatory obligations under s473CB ( 1) (c) as the report footnoted at 8 falls within the scope of “other material” that was in the Secretary's possession or control and was considered by the delegate to make findings regarding an important integer of the applicant's claims. The fact the report (though not in its entirety) formed part of the material that was referred to the IAA under 473CB [CB 159. 3) amounts to a consideration by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review.

6. For these reasons, the Secretary failed in its statutory obligation to provide the complete report to the IAA.

Consideration

Ground 1

1. Mr Tambimuttu submitted that the finding by the Authority in relation to his employer’s death in paragraph 14 not being by reason of suspicion of helping the LTTE and which was repeated in paragraph 27 was legally unreasonable and not open to the Authority. The Authority identified the nature of a report that provided information that on 23 May 2006 two motorcycle riding gunmen, GoSL agents, by gunfire murdered a motor mechanic around 7 p.m. at a particular village. The report indicated the murder victim was shot 100 metres from his mechanic shop.

2. That report came from a CISNET entry referred to in both footnote 7 and footnote 8 of the delegate’s decision described as:

   “United States District Court Central District of California, United States of America v. Gotabaya Rajapaksa and Sarath Fonseka, Grand Jury Indictment for Genocide, proposed to the United States Department of Justice”, Tamils against Genocide, 01 January 2009”.

3. Mr Tambimuttu argued that the reference to the report coming from the report so described and to the GoSL agents meant that the finding was legally unreasonable as to the absence of an LTTE link. The adverse finding by the Authority was open on the material before the Authority for the reasons given by the Authority. Nothing in the reference to the government of Sri Lanka agents or the nature of the governing report from which that report was obtained gives rise to the adverse finding not being open to the Authority in respect of the absence of a link between the murder and the employer having an LTTE connection. The nature of the report referring to Tamils does not give rise to it being legally unreasonable for the Authority to find that there was no link established in respect of the murder and LTTE suspicion.

4. The adverse finding cannot be said to lack an evident and intelligible justification and no jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, Mr Tambimuttu submitted that the material supported the existence of a particular social group which Mr Tambimuttu described as “motorcycle mechanics”. Whilst the applicant identified a history of having worked as a mechanic, no claim fairly arose on the material before the Authority of a fear of harm by reason of being a member of a particular social group of motorcycle mechanics, nor did such a claim fairly arise on the substratum of facts before the Authority.

2. The Authority made findings dispositive of the applicant’s claims which included his fear of harm by reason of his involvement of work as a mechanic and made express reference in its adverse findings to the applicant’s role as a motorcycle mechanic. Mr Tambimuttu submitted that motorcycle mechanics was a particular social group being an occupational group that fairly arose on the material before the Authority. I do not accept that any such social group fairly arose in the material before the Authority. No jurisdictional error as alleged in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, Mr Tambimuttu sought to argue that the Authority had been the subject of a breach of s 473CB by the secretary in the failure to provide the whole of the report earlier referred to in the delegate’s decision at footnotes 7 and 8. The Practice Direction previously referred to makes crystal clear that the digital electronic copy of that report was available to the Authority and deemed to be provided in accordance with s 473CB. The argument that the Court book identified only two pages by reason of which it should be assumed the Authority did not have the whole report has no substance or merit.

2. It is entirely appropriate for Court books to reflect the distillation of material, and no adverse inference is open or arguable by reason of the selection of country material to assist the Court and ensure that the Court is not swamped with hundreds of pages of irrelevant material.

3. Mr Tambimuttu also sought to put into evidence the report that was 815 pages, first, in relation to Ground 3. In relation to Ground 3, he did so by reason of wanting to identify that the content of the Court book was not the whole of the report. The Minister accepted as a matter of agreed fact that the relevant report comprised 815 pages, and Mr Tambimuttu acknowledged that that was the only relevant fact that he required for the purpose of Ground 3 in seeking to tender the material that the Court rejected.

4. In relation to Ground 2, the first respondent accepted as an agreed fact that within that 815 page report, there were incidents of the kind identified in Particular 10 that Mr Tambimuttu had extracted subsequent to the Authority’s decision and advanced in support of Ground 2. Those paragraphs do not make out any particular social group as advanced by Mr Tambimuttu, nor were they incidents that were identified and advanced before the Authority as giving rise to some particular fear by the applicant.

5. Mr Tambimuttu accepted that the only requirement of the tender of the report in respect of Ground 2 was Particular 10 which Mr Tambimuttu confirmed was a verbatim extract by him from that report. It was on that basis that the Minister accepted as an agreed fact that that was material contained within the report. That agreed material advances the alleged error in respect of Ground 2.

6. Mr Tambimuttu also sought to argue that the report should be admitted into evidence in support of Ground 1 and the assertion of legal unreasonableness in the adverse finding on the basis that the nature of the report was directed to the difficulties faced by Tamils and that the report in whole would accordingly assist the inference that the owner of the mechanical garage was shot because of LTTE suspicion by the Government of Sri Lanka agents.

7. The Court raised with Mr Tambimuttu that the description of the report was apparent from the delegate’s reasons and was a sufficient basis upon which Mr Tambimuttu could develop that argument. Mr Tambimuttu pressed that the whole report should be admitted into evidence. The Court was not satisfied that the whole of the report was relevant. The whole of the report is hundreds of pages long, and the proposition that Mr Tambimuttu wished to develop in relation to Ground 1 was capable of being advanced based on the description of the report as well as taking into account the incidents that Mr Tambimuttu had been able to identify and extracted in Ground 2, Particular 10.

8. I do not accept that the principle of legal unreasonableness in respect of the adverse finding by the Tribunal could be made out by the receipt of the whole of the report into evidence. It is important in relation to the conduct of cases before the Court that prolix or irrelevant material is not adduced into evidence to clutter the Court record either for this Court, or for any superior Court.

9. Whilst I accept that the report may have been relevant to a particular ground by reason of particular entries of the kind identified in Particular 10 or by reason of the size of the report as raised by Ground 3, the Court was not satisfied that the whole of the report was relevant to the issues raised by the allegations of jurisdictional error in the present case. Unless the relevant country information in whole is relevant to the allegations of jurisdictional error, the Court should not be burdened with hundreds of pages of country information that are not relevant to the determination of legal error.

10. Further, where it is the case that there are particular entries that are capable of being said to be relevant it is those particular entries only, not hundreds of other pages that should be adduced into evidence.

11. The Court notes that the agreed facts in the present case were the subject of leave granted by the Court under s 191(3)(b) of the Evidence Act 1995 (Cth) and that there was no dispute by the parties as to the agreed facts and that the agreed facts were before the Court with the agreement of all the parties, albeit, Mr Tambimuttu did press for the tender of the whole of the document which, for the above reasons, was rejected.

12. No jurisdictional error as alleged in Ground 3 is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  24 January 2018