CGM18 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGM18 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3348

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant:

CGM18

Second Applicant:

DIW18

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 240 of 2018

Judgment of:

Judge Vasta

Hearing date:

10 October 2019

Date of Last Submission:

10 October 2019

Delivered at:

Brisbane

Delivered on:

10 October 2019

REPRESENTATION

Solicitors for the Applicants:

AUM Legal

Counsel for the First Respondent:

Ms Taggart

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That the name of the First Respondent be amended to read the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the Applications filed 2 May 2018 and amended on 25 June 2018 and further amended on 1 October 2019 are dismissed.
That the First Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 240 of 2018

CGM18

First Applicant

DIW18

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 29 March 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to grant the Applicant, CGM18, and his child, DIW18, protection visas. DIW18, as a child, had their claims as a member of the family unit and did not have separate claims. On 2 May 2018, the Applicants filed an originating application in this Court asking the Court to review the decision of the IAA.
The background of this is that the Applicant and his wife arrived in Australia together in October 2012. The third Applicant, DIW18, was born in Australia in September 2013. The Applicant, his wife and child lodged a combined application for a Safe Haven Enterprise visa in July 2017 but for reasons that don’t concern us here, the delegate and the IAA ended up giving separate decisions with regard to the claims of the Applicant husband and the Applicant wife.
The child is a family member of both but the decision that has been reviewed is one that only involves the husband and the child.
The claims that the Applicant makes can be summarised in this way. The Applicant is of Tamil ethnicity. He was born in August 1987 in Kilinochchi. He’s a jeweller by trade. He came from a family with well-established connections to the LTTE. Two of the Applicant’s brothers were members of the LTTE during the civil war. The Applicant said that his father also supported the organisation by providing food and other supplies. The Applicant and another brother, a fourth brother, an elder brother, operated the jewellery shop in Kilinochchi.
They closed that shop in 2008 because of the war. In 2009, the Applicant and his brother surrendered to the Sri Lankan army and were detained in a camp. They were released in 2010. After his release, the Applicant moved to Jaffna. He opened a jewellery shop in Jaffna. The shop was successful for some time but the Applicant said that he came to the attention of Sri Lankan authorities. He said that in 2010 he was detained for three days by the Sri Lankan police CID because he had suspected links to the LTTE and he was tortured during that time.
After his release, he sold the Jaffna jewellery shop and returned to Kilinochchi. In Kilinochchi he opened another jewellery shop which he successfully operated for about a year. He said that in 2011 he came to the attention of the CID in Kilinochchi and, fearful of further mistreatment, he decided to leave Sri Lanka.
He and the wife married in early 2012 and they tried on at least two occasions to go to Germany. In September 2012, the Applicant and the wife fled Sri Lanka by boat and they arrived in Australia soon after.
The Applicant said that his brother came to Australia in 2010 claiming asylum. His brother was refused a visa and voluntarily returned to Sri Lanka in 2015. He said that after his brother returned to Sri Lanka, his brother was detained by the Sri Lankan authorities because of the family’s LTTE connections and he was tortured. After his release, the brother escaped Sri Lanka and now resides in Canada where he has been accepted as a refugee. The Applicant fears returning to Sri Lanka because he believes that the same treatment given to his brother would be meted out to him.
He fears that his Tamil ethnicity, his previous wealth and his residence in the north of Sri Lanka would result in him being harmed if he were returned to Sri Lanka and he fears his wife would also be harmed.
The IAA thoroughly assessed these claims. With regard to the LTTE connections, the Applicant said that when he was about 18 years old, in 2006 or 2007, and working in the jewellery shop of his brother, he was required to attend two weeks of compulsory LTTE weapons training, as were other people of his age in the area.
During that training he was taught to use a rifle and some evasive techniques for use during bomb attacks. He said that three months after he completed this basic training course, he was rostered to man a checkpoint set up by the LTTE on the main road between Kilinochchi and Colombo. He was told to do this for two weeks. He said that during this period, he would be driven to the checkpoint location each morning and would be issued rifles. After his initial two weeks of checkpoint work, he claims that he was rostered for two further fortnights of work but he refused to attend.
The IAA noted that that story of compulsory recruitment is in line with country information. The entry interview between the authorities and the Applicant disclosed that the Applicant denied that he personally had links to the LTTE or any involvement. But his not having links is still consistent with country information which would corroborate that story that he had undergone such training and worked at a checkpoint for two weeks.
The Applicant says that this older brother, who was identified as P2, was the leader of an LTTE fighting team and his brother left the LTTE in 2003, worked as a farmer during the period of ceasefire and then departed for India and he died in India in 2011.
Another brother, P4, was forcibly recruited into the LTTE in 2006 and fought in the final phase of the war, being killed in 2009. He said that his father supported the LTTE. The IAA was prepared to accept the LTTE connections of P2 and P4 but not that the father had been a supporter of the LTTE because the Applicant had not asserted that his father had links to the LTTE when he was interviewed in 2012 upon arrival. He did make that claim in his application of 2017, but in his visa interview in November 2017 he did not assert that claim. The IAA concluded the Applicant invented that claim about his father in order to enhance his claim for protection.
The Applicant claimed that after he was released from the Internally Displaced Persons camp, IDP camp, in January 2011 (or it would seem that was probably 2010) he opened a jewellery shop, and one of his employees was a person whom I will call V. The Applicant said that he and another employee lived in the shop but would go to V’s home for meals and to shower.
He claims that, in 2010, the CID became aware of his presence in Jaffna and started to harass V’s family for harbouring a person from an LTTE area. He claims that V’s home was visited on two separate occasions where the CID entered the premises and searched for evidence of the Applicant’s LTTE connections. He said that V’s wife was threatened and had a weapon pointed at her head, and that the CID were men who were wearing masks.
He said that he reported the matter to police because he had formed the view that if the CID or the army was looking for him he should just surrender himself to the authorities. He said that when he went there, the police advised him that he was not wanted for any crime but that he should return the next day and report to the CID. He said that when he did do that, he was detained and tortured for three days by the Jaffna branch of the CID; he was beaten and forced to hold a log between his legs. He said that after his release he sold the shop and returned to Kilinochchi.
The IAA said that this evidence was vague, and that, for a number of reasons, they did not accept this part of the evidence and concluded that the Applicant had fabricated his account of detention and torture by the CID in order to enhance his claims for protection.
The Applicant said that on his return to Kilinochchi he successfully operated another jewellery shop. He said that after 12 months of operating this, two CID officers visited his shop looking for him, and, fearful of this, he decided to flee the country.
The IAA noted that around March 2012 and July 2012, the Applicant made two attempts to seek asylum in Germany. On both of those attempts, the Applicant transited the airport on his departure and again on his return to Sri Lanka. To do this he used a Sri Lankan passport issued in his own name. The IAA concluded that they were not satisfied that a person who had come to the attention of the CID for LTTE-related activities would have been able to transit Colombo Airport immigration section four times in mid-2012 if they were genuinely suspected of LTTE connections or were being sought by the CID.
The IAA concluded that they were not satisfied that the Applicant was ever suspected of being an LTTE member in 2011 as he claims, and that the Applicant invented these episodes in order to enhance his claim for protection in Australia.
The IAA then looked at what the Applicant had claimed about his brother, whom I will call P3. The Applicant claimed that P3 had been accepted as a refugee in Canada in January 2017. The IAA accepted that P3 had been accepted as a refugee, but noted that the evidence supplied did not outline the circumstances of the refugee claims nor the basis for the Canadian Immigration and Refugee Board’s decision to grant P3 refugee status.
The IAA noted that the Applicant had not provided any independent evidence in support of the claim of mistreatment of his brother by the CID after his return from Australia. The IAA noted that the Applicant’s claims about P3’s 2015 period of detention have expanded between his SHEV application and his protection visa interview. At interview his answers appeared to change and add more information as he was asked further questions by the delegate.
The IAA gave the examples: that at interview the Applicant maintained that his brother has paid a $1200 bribe upon his return that was shared between three CID officers; and, that he was detained upon his return at the airport, blindfolded, tied-up, driven around for two hours, and held for three days by the CID, and that he believed that the detention was served in Kilinochchi, although not sure of the exact location. None of that information was in the SHEV application. The IAA said that they had doubts and were unconvinced that the Applicant was telling the truth since he failed to mention any of those details in the earlier account.
The IAA concluded the Applicant was inventing some of this information during the interview and was therefore not satisfied that the Applicant was telling the truth about the treatment his brother received. The IAA noted that they were unable to determine the basis for P3 being granted refugee status in Canada, and they were not satisfied that P3 was mistreated after his return from Australia in 2015.
The IAA then looked at the aspect of the Applicant’s Tamil ethnicity, his residence in the north of Sri Lanka, the supposed LTTE connection, his wealth and the brother’s claim of asylum. The IAA looked at the country information that illustrated that since the election of President Sirisena in 2015 the government had taken genuine steps towards reconciliation and that there have been significant improvements in the day-to-day lives of Tamils in Sri Lanka.
And the IAA noted a recent report from the UK Home Office indicating that a person being of Tamil ethnicity would not, in itself, warrant international protection, and neither, in general, would a person who evidences past membership or connection to the LTTE , unless they are perceived to have a significant role in relation to post-conflict Tamil separatism, would warrant international protection simply because of that past membership or connection. The IAA noted that the Applicant has not claimed that he had any such role.
The IAA looked at the question of the Applicant’s family’s perceived wealth and wasn’t satisfied that he or the family members face a real chance of harm on that basis.
The IAA accepted the Applicant had conducted the compulsory training and had spent two weeks manning a checkpoint around that time, and had accepted the Applicant’s historic family connections to the LTTE through the brothers and then looked at whether those facts would cause any problems if the Applicant returned.
The IAA said that they observed that the training and the manning of the checkpoint were events that were forced upon the Applicant by the LTTE rather than being indicative of his support for the organisation. The IAA noted that, furthermore, during both events the Applicant was just one in a large pool of persons coerced by the LTTE into engaging in these activities based upon their age and employment.
The IAA noted the country information which detailed that there are very small numbers of people that are in government custody because of their membership or former membership of the LTTE and noted that these numbers reflect the changing focus of the Sri Lankan Government as can be seen in other country information. The IAA noted that the brothers, who were members of the LTTE, are both deceased, and the other brother still lives – that is, P1 – still lives in Kilinochchi and continues to operate a jewellery shop there.
The Applicant’s parents, sister, maternal aunts and uncles still reside there - and that the evidence suggests to the IAA that other members of the family who continue to reside in Sri Lanka are suffering no ill effects from the family LTTE connection.
The IAA noted that the Applicant himself, who it was accepted was in IDP detention for about 10 months, did not suffer from any difficulties, and was not identified as an LTTE member during this period and was able to depart and return to Sri Lanka four times in 2012 on a valid Sri Lankan passport.
The Applicant claims that he fears he will be detained by the CID, and tortured and possibly killed if he returns. And the IAA, in looking at that claim, concluded that the fears were invented by the Applicant for the purposes of enhancing his claim to protection, and the IAA did not accept that those fears are real.
The IAA concluded that, having considered all of the evidence before it, and noting that more than 10 years have passed since the Applicant’s limited involvement with the LTTE, that close family members continue to live in Kilinochchi without problems and that the Applicant was able to depart and re-enter Sri Lanka on multiple occasions in 2012 within incident, the IAA was not satisfied that the Applicant would face a real chance of harm if returned to Sri Lanka based on any of his or his family’s connections, his ethnicity, his connections to Kilinochchi or the north of Sri Lanka.
And, for the same reasons, the IAA did not accept that the Applicant’s child would face any harm.
The IAA looked at the Applicant’s status as a failed asylum seeker who departed illegally, and looked at the country information and how the Immigrants and Emigrants Act had been utilised by the authorities. The IAA accepted that the Applicant departed Sri Lanka illegally and, if returned to Sri Lanka, he would likely face charges arising from breaches of that Act, but looked at the country information as to what would normally happen to someone in the situation of the Applicant.
The country information is that there would be a small fine or sometimes some time spent in custody until the matter can actually be sorted, but none of that is such that would amount to persecution. Having looked at all of those matters, the IAA came to the conclusion that the Applicant did not meet the definition of refugee under the Act.
The IAA then looked at the complementary protection criteria, and going through those matters, came to the conclusion that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, that there was a real risk that the Applicant would suffer significant harm.
The IAA looked at the child’s application as a member of the same family unit and came to a similar conclusion. Having come to that conclusion, they affirmed the decision.
The amended application has two grounds that have been particularised. The first ground is that the IAAs conclusion, at paragraph 24, that the IAA was not satisfied the Applicant was telling the truth about the incidents in Jaffna after his release from IDP detention, and that he had fabricated these events to enhance his claims for protection, was reached by the IAA without logical or probative basis.
The ground really comes down to this: that if that conclusion was simply not open on the evidence before the IAA, then that finding was one of the findings that really went to the aspect of the Applicant’s credibility, and because it had that effect of altering his credibility, or being capable of altering his credibility, it would assume the level of error of being a jurisdictional error.
One then has to look at paragraph 24. I will read the whole of the paragraph into the record.
Having considered all the evidence the Applicant has provided about his time in Jaffna, I am not satisfied he is telling the truth. I find his account to be vague and to lack plausible detail. For example, when the Applicant was asked when this period of detention occurred, he claimed it occurred on a Wednesday, Thursday, Friday, but was unable to determine what month it occurred or event to remember, whether it was in the early or late part of 2010.
The three men who entered the store were described by him as wearing masks. They searched throughout the premises. The Applicant claims they were looking for evidence that he had links to the LTTE but stated that they were harassing him in the first place because they knew he had such links. In his SHEV application, he said that they were SLA personnel. At interview he said he did not know who they were but thought that they were the CID. He has not outlined what the consequences of his detention were; for example, whether he had any conditions put on him after his release.
He later said that the CID denied any involvement in the raid on his house. Furthermore, I am not satisfied that a person who was suffering harassment from the CID, including violent house entry and threats, would afterwards hand himself into the same authorities the next day if this fear was genuine. Noting the vague claims and the contradictions in his account, I am not satisfied he is telling the truth and I conclude that he had fabricated these events. I do not accept that men entered and searched V’s house twice, or that the Applicant was detained for three days and tortured during this period. I conclude the Applicant has fabricated his account of detention and torture by the CID in order to enhance his claims for protection in Australia.

The Applicant relied on a number of particulars and expanded upon this in the oral submissions that were made. The Applicant says that the IAA has failed to take into account the Applicant’s evidence in his SHEV application and, if one looked at that, it would show that he had provided detail about the detention and why it had occurred and where he was held. If one then goes to that application, which is contained at court book 108, the following paragraphs appear. Paragraph 16:
16. I was released from the camp in January 2010 because I elected to relocate in Jaffna. I stayed with one of my friends for approximately 3 months. Once I was settled, I opened a new jewellery shop in Pandatheripu. My shop was named Pavishan Jewellery, named after my brother’s son.
17. I employed a jeweller named V who made jewellery for the shop and another helper named B. B and I used to sleep in the shop at night and we used to shower and eat at V’s house.
18. After 10 months, I had to sell the shop to an accountant who worked in the shopping centre because the CID constantly harassed us. The army had started harassing V’s family because of me and accused him of harbouring someone from an LTTE area. This was because I was a business person from Kilinochchi who was released from the army camp and voluntarily relocated to Jaffna.
19. The harassment was severe and the CID/army ransacked V’s house twice and held a gun to his wife’s head, threatening them for assisting a person of suspicion in their home. As a result of this, I went to the local police station to make a report that the army may have been looking for me. I then went to the local army camp to inquire whether anyone was looking for me. An officer told me that no one was looking for me and said I was free to go but would contact me if they needed to.
20. The next day, a CID officer came to the shop while I was away and left a message with B for me to report to the CID office as soon as possible. When I returned and received the message from B, I immediately reported to the CID office. I spoke to a person called K who was a former LTTE cadre who now worked for the CID. He questioned me about whether I knew of him and asked me to tell him if I was involved with the LTTE.
21. He didn’t believe me and detained me for three days. During that time, they tortured me and continued to question my involvement with the LTTE movement. On the third day, they released me with a warning not to leave Jaffna without reporting to them first.
22. One week after I was released, I sold everything and went to Kilinochchi because I no longer felt safe in Jaffna…
In the interview he had with the delegate, he said this at page 19:
The delegate said, “All right. Now, you also said that V’s house, that was somebody working with you or for you, was ransacked and it was because of you. How do you know that?
The Applicant said, “No. They didn’t ransack, but they had broken into – they broke into my – our rooms and looking for any documents related to LTTE and finally, they threatened her with the gun, pointing the gun to her head and they told them that she was hiding LTTE people.”
Delegate: They said that his wife was harbouring LTEE people?”
Applicant: Yes. In your house, you’re hiding them.
Delegate: Okay. How long have you known V?
Applicant: I know him after we opened the shop for about 10 months. I have seen him previously, but I didn’t have any friendship with him at that time.
Delegate: All right. So you didn’t know him before you employed him as a jeweller.
Applicant: Yes. I know before the shop because we hired him in the shop. He was working in another jewellery shop in Sri Lanka.
Delegate: Okay. What did you know about him, his personal background?
Applicant: I don't know anything personally about him, but I know his whole family is in Colombo. He had three children living with wife.
Delegate: Okay. So where was this house that was ransacked?
Applicant: That house was a rented property which V was residing.
Delegate: And he was there on his own and his wife was living in Colombo?
Applicant: Only his wife’s mother and father. They were in Colombo, but she was living with him.
Delegate: Okay. All right. Now, you didn’t know anything about V personally. How do you know he had not done something to upset the CID or, you know, whether they were suspicious of him as well for working with the LTTE?
Applicant: Are you asking about V?
Delegate: I’m asking you about V. You said you didn’t know anything about his background. You said the reason that they ransacked his house was because of you, but how do you know it was because of you or it wasn’t something to do to do with something in his background?
Applicant: After that, CID detained me for three days.
Delegate: In connection with what?
Applicant: When CID came and inquired me, I was so frightened and then I went to police and I made a report to say they’ve ransacked the house.
Delegate: Okay. Why would you make the report if it was not your house?
Applicant: Because they went and threatened his wife by asking me.
Delegate: Sorry, they what?
Applicant: They went and threatened his wife and they were asking about me to her.
Delegate: Okay.
Applicant: I was also in that house because they broke into our rooms and checked.
Delegate: Were you living at the house as well?
Applicant: Yes. I faced problems because of that. I used to sleep in the shop during the night time, but for showering and for meals and all, I go to this house.
Delegate: Okay. What time during the day did they come to ransack the house?
Applicant: About 6.30/7 in the evening, three motorbikes and there was no number plates on the motorbikes and they’ve concealed their face. His wife was there and then they went and asked about me and they threatened her, only during the second visit, they threatened his wife at gunpoint.
Delegate: Okay. All right. Now, if they had their faces concealed, how do you know it was not somebody coming looking for jewellery to steal?
Applicant: Next day, CID asked me to go to the camp for inquiry. Then only I realised they were CID.
Delegate: Okay. So they admitted that they had been to the house twice and ransacked it?
Applicant: No. They didn’t agree. They didn’t accept that they ransacked the house at the same time. They didn’t take anything from my room as well.
Delegate: Okay.
Applicant: And I didn’t ask them whether they were the ones visited.
Delegate: All right. You said they detained you for three days. What date was that?
Applicant: That’s Wednesday, Thursday, Friday.
Delegate: Yes. When?
Applicant: I don't remember the date. I just remember it was 2011. I don't remember the month and the date.
Delegate: So it was in 2011.
Applicant: No. It was not 2011. At that time, I was in ….. 2010.
Delegate: In 2010, you don’t remember what month.
Applicant: I don't remember.
Delegate: Okay. All right. And you said they tortured you. What do you mean by torture?
Applicant: Three people beaten me. I have to hold the wooden piece under my knees and I have to bend it and hold the wooden piece all the time and if the wooden piece has fallen down, I will be beaten. If it fell down, they will beat me a lot.
Delegate: So you had the hold the wooden piece under your knees. Okay.
Applicant: Between the calf muscle and the thigh.
Delegate: Okay.
Applicant: Since I was living alone in Jaffna without my family and mother, that was the main reason for them to suspect me.
Delegate: All right. And did you have to go to hospital after that?
Applicant: Yes. My mother came and took me. That was private hospital.
Delegate: Which hospital?
Applicant: Private hospital.
Delegate: Which hospital?
Applicant: I don't remember.
Delegate: How long were you there? Applicant: I didn’t stay in the hospital. I was just treated and I went home.
Delegate: Okay. What were you treated for? Applicant: They gave me pain killers.
Delegate: Pain killers for what?
Applicant: Knee pain. For knee pain.
Delegate: Knee pain.
Applicant: And body pain.
Delegate: Okay. But you didn’t have any cuts or anything like that?
Applicant: No.
Delegate: All right. Now, you went to Kilinochchi and opened another store. You had no problem for 12 months.
I have detailed all of that evidence for this reason: that, when one looks at paragraph 24 in the IAA’s reasons, it is clear that the factual summary that the IAA gave at paragraphs 21, 22 and 23 and the facts relied on in paragraph 24 are an accurate representation of what was said.
The Applicant makes a number of complaints, and I will go through them. Firstly, that when the IAA said that the Applicant had not provided any other detail about detention, such as why it occurred, where he was held and what the CID wanted.
Having read all of that evidence, it seems to me that what the IAA said at paragraph 23 was proper and that it had taken into account all of what the Applicant had said. I cannot see that the description of it being vague is an improper description.
The second aspect that the Applicant points to is that the IAA said, “Furthermore, I am not satisfied that a person who was suffering harassment from the CID, including violent house entry and threats, would afterwards hand himself into the same authorities the next day if this fear was genuine.”
The Applicant submits that the Applicant was in no position to disobey the CIDs request that he report to them the next day and that had he not reported as directed, he would have put himself in greater danger of harm from them. That is a submission that does not have any evidentiary basis whatsoever. It is something that has come only from the submissions. It was not part of the evidence. The Applicant had never said anything of that nature.
And furthermore, the submission is somewhat contradictory given the Applicant’s evidence later on, he actually did disobey requests by the authorities and there were not any consequences. For example, the Applicant ends up saying that nothing happened after his release other than he was told not to leave Jaffna without reporting to them that he was going to leave. The evidence is that he did leave Jaffna without reporting to them and went back to Kilinochchi. The submission that the IAA has not looked at the Applicant being in no position to disobey the request has no merit whatsoever.
The Applicant also looks at the IAA saying this at paragraph 24:
…The Applicant claims they were looking for evidence that he links to the LTTE, but he stated they were harassing him in the first place because they knew he had such links. The Applicant says that the harassment only began after the search…
Having regard to the evidence that I have just read into the record from the Applicant’s interview and from his application, it is clear that the Applicant was saying that the harassment was fairly constant and concentrated on the person V. It was the culmination of the harassment of V that ended up in the searches. There was no reason to search V’s place if there had not been the harassment. So there is no merit in that particular aspect of the submissions.
The last particular that the Applicant puts forward is that the IAA had said that the Applicant had not outlined what the consequences of the detention were, whether he had any conditions put on him after his release and the Applicant points to the fact that the Applicant was given a warning not to leave Jaffna without reporting to them. One could be pedantic and say that this is not a condition. It is a warning because that is how it was put. But in any event, it is clear that there were no consequences after this detention, such as constant reporting into them or anything that nature. Those observations were proper observations for the IAA to make.
It seems to me then when one looks at all of the arguments that have been put forward by the Applicant in this ground, that the IAA did have sufficient evidence that was logical and probative to come to the conclusions that they came in paragraph 24. Therefore, there is no jurisdictional error that has been illustrated in that ground.
The second ground is that the IAA’s decision was vitiated by jurisdictional error, in that it failed to consider the Applicant’s claim that if he is forced to return to Sri Lanka, he fears harm on the grounds that he did not come forward to identify himself as a person who had undertaken weapons training and had manned checkpoints carrying weapons with instructions to shoot the Sri Lankan security agencies who tried to pass the checkpoint. Alternatively, the IAA erred when it concluded that “I do not consider the Applicant was ever a member of the LTTE.”
It is trite to say that the IAA must deal with all claims that have been made by an Applicant or have arisen in the course of the evidence given by an Applicant. That is really the ratio in authorities such as NABE or Dranichnikov. But still, those have to be genuine claims that have actually arisen on the evidence.
In this case, the Applicant points to an exchange that occurred at page 24 of the transcript. I will read the complete passage into the record at line 5.
Delegate:
Okay. And why do you think you would have a problem as a failed asylum seeker?
Applicant:
I was – I left Jaffna and I left many times because of those things. Definitely they will think that I am having some connection with LTTE. Even if they start inquiring me, it will be a very severe one and they will torture to the unknown extent. When I was in camp they told – they asked us to report to them even if someone has undergone one day’s training, but I never told them the training I had underwent.
Delegate:
Okay. So quite a long time has elapsed since the war or the conflict finished, so why do you think information about the short time that you worked for the LTTE would come to light now?
Applicant:
Even for ordinary people who didn’t have any connections, they are being harassed, but if they know that I have on training, I underwent training, and the reason for the training was only to shoot them, so they know that.
Delegate:
They know that?
Applicant:
Only to shoot them we were trained.
Delegate:
Okay, but how would they know that if they haven’t detailed you or held you in a rehabilitation camp at the end of the conflict?
Applicant:
Are you asking about my training?
Delegate:
You’re saying that they know about what your – you’ve been doing. What I’m saying is if they know what you’re doing, why didn’t they detain you and put you through rehabilitation like they did for all the other people that they knew were with the LTTE?
Applicant:
If they again start inquiring me, they will torture me to the maximum possible extent and they will take me to fourth floor and they will torture me and they may even kill me.
Delegate, “Okay.” Applicant:
Even if I say something, he will think that I’m hiding something.
From that exchange, the Applicant has said that he has made a claim that if he returns as a failed asylum seeker, he will face questioning, even torture, because they will understand that he has a connection with the LTTE. If during that torturing, they know, or he lets slip, that he had been trained to shoot SLA personnel, and he had been asked while he was in the IDP camp to come forward and he did not come forward to tell the authorities that, then he will be tortured and killed upon the resulting inquiries being made.
It does not seem to me that that is a claim that fairly arises from what has been said by the Applicant that I have read into the record. The Applicant has relied on an authority where the applicant in that other case had been a bagman for the LTTE and this had not been known by the authorities at the time, that that particular applicant left Sri Lanka. The Applicant submits that because that Court found that a claim had not been properly looked at in that case, that this is factually similar to the present case.
As I said during the course of argument, those sorts of authorities only have a limited use; that is, what is the legal principle that has been enunciated and does that legal principle have application to the facts of this present case.
But what the Applicant is trying to do is to try and use the factual comparisons to argue that if there is a factual similarity, then there needs to be a similar result. That is not a logical point. Whilst I thank the Applicant very much for bringing those authorities to my attention, they really have not been of any practical assistance to me.
It seems to me that there really has been no express or implied claim that has arisen. The Applicant did not say that he would come to attention of the Sri Lankan authorities for not having acknowledged his training when asked. He raised this as a reason why, if he were to come to the attention of the authorities, his harm would be more severe. The IAA had looked at whether or not he would face harm as a result of the LTTE connections.
The IAA, as is illustrated in my recitation of what they had done in their reasons, had looked at whether or not the Applicant would come to the attention of authorities, or whether there would be consequences to the Applicant, because of his LTTE connections. The IAA made a factual determination that he would not come to the attention of the authorities for that reason. When one has a look at what the Applicant has actually said, the claim he makes is that this fact may become known if it is that there are inquiries made with him and that those consequences would be severe. The IAA has said that they were not satisfied that those inquiries would be made in the first place. So this situation does not arise.
It cannot be said that this is a separate claim. It is part of the same claim that the Applicant had made that he would come to the attention of the authorities and it was a claim that was dealt with by the IAA. So that part of the ground has no merit.
The alternate ground, which was that the IAA erred when it concluded that they did not consider that the Applicant was ever a member of the LTTE, was one that was not really pressed during argument. That was a finding of fact that was open on the evidence and, having gone through the evidence in quite some detail, it is obvious that such a finding was open on the evidence. I cannot see that there has been any error in that respect.
I have come to the conclusion then that there has been no jurisdictional error that has been illustrated.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 27 November 2019

[2019] FCCA 3348

10 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Costs

Procedural Fairness