CHF16 v Minister for Immigration

[2017] FCCA 405

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHF16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 405

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visas – application of s.473DD to consider whether there were exceptional circumstances to justify the Authority considering the new information – findings made by the Authority were open and cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 473BB, 473CB, 473DD, 473EC, 476

First Applicant: CHF16

Second Applicant: CHG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2240 of 2016

Judgment of: Judge Street

Hearing date: 6 March 2017

Date of Last Submission: 6 March 2017

Delivered at: Sydney

Delivered on: 6 March 2017

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges

Hodges Legal

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2240 of 2016

CHF16

First Applicant

CHG16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for 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”) affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise (Subclass 790) visas.

2. The applicants are citizens of Sri Lanka and the second applicant is the son of the first applicant and was treated as a member of the family unit and did not make any specific claims. 

3. The first applicant resided in a displaced person’s camp between 1990 and 2003. On 26 September 2012, the first applicant travelled by boat to Australia. On 13 September 2013 the first applicant invalidly applied for a Protection visa with the second applicant included as a family member. By letter dated 29 June 2015, the first applicant was informed of that invalid application, because of the bar under s.46A(1) of the Act. By letter dated 8 July 2015, the applicants were invited by the delegate to apply for a Temporary Protection visa or a Safe Have Enterprise Visa.

4. By letter dated 21 August 2015, the applicants’ migration agent provided an application for a Safe Haven Enterprise Visa. On 28 October 2015, a delegate of the Minister interviewed the applicant. On 11 November 2015, further submissions were provided by the applicants’ migration agent to the delegate and it was on 9 June 2016 that the delegate refused the applicant’s application for a Safe Haven Enterprise Visa.

The Delegate

1. The first applicant was identified as a Tamil and Hindu from a particular region who said he had been displaced around 1990 by the civil war and was resettled back to a particular location in 2003. The first applicant identified that he travelled to Australia with the second applicant, his son, leaving behind his wife, two other sons and a daughter living in Sri Lanka. The first applicant said he was arrested in 1992 and was held in an army camp for 10 days and then transferred to a Colombo jail where he was kept for 87 days.

2. The first applicant alleged that in 2008 he was stopped by several Sinhalese men and asked to take them to a particular café. The first applicant feared that the men might be CID or army personnel because of their appearance. The first applicant referred to the CID abducting Tamils during this period and especially drivers, because of suspicion that they were involved with the LTTE or are Tamil political activists. The first applicant alleged that because the first applicant refused to assist the men, he was taken out of the van and beaten. The first applicant alleged he was asked whether he was involved with the LTTE. The first applicant alleged that he was held in captivity for about three days and then released, and that he walked home and then went to hospital. The first applicant alleged he only stayed in hospital one day, because two men kept coming to the hospital to check on him.

3. The first applicant alleged that he went to the UNHCR to give them details of his kidnapping, and that he was followed by two men wearing black clothes riding a motorbike. The first applicant alleged that he was told at the UNHCR it was likely that those persons would continue to try and pursue him and that he should try and apply for a refugee visa to go to another country. The first applicant recorded that that led to him making an first applicant to the Switzerland government, but he did not receive any outcome for that application. 

4. The first applicant alleged that between 2008 and 2011, men came to his house on several occasions and his wife answered the door, but they didn’t come in. The first applicant alleged that his wife was given information telling her that he had to report to a particular camp, and that the first applicant accordingly suspected the men were CID or armed personnel. The first applicant alleged that his eldest son was questioned by the CID in 2011. 

5. The first applicant alleged that he moved to his mother’s house and his siblings’ houses. Relevantly, the first applicant alleged that his wife told him that the men came twice in 2012 looking for him. The first applicant also referred to the fact that his wife was told by some relatives that instead of living in fear of his life and hiding, it was possible to go to Australia, and that his wife and brother in law made arrangements, and that his son begged him to come so he had no choice but to bring him. 

6. The first applicant alleged that men came to his house on 20 November 2012 and that his wife told them he was still living in a different area.  The applicant’s wife told him that these men told her that this was the last time they would ask for the first applicant, and that if they found him they would kill him.  The first applicant said that he was scared he would be kidnapped and killed, which would leave his family without the protection of a father and husband, and that without a husband, his wife is unable to go anywhere safely. The first applicant alleged that he was worried every day about the safety of his family because of the threats made against them. The first applicant alleged that he feared he would be arrested, abducted and beaten, and killed by the Sri Lankan police, army, and/or CID because they suspect him of being involved with the LTTE. The first applicant also feared that he would be discriminated or harmed because of being a Tamil. 

7. The delegate was satisfied that the applicants were fast track applicants within the meaning of subsection 5(1)(a) of the Act.

The applicant’s claims and evidence

1. The delegate identified the first applicant’s claims and evidence. The delegate noted that the first applicant stated he does not support the LTTE at all, and he has never been a part of any group that supports them. The delegate found that the first applicant has not been an LTTE supporter. The delegate did not accept that the first applicant was of adverse interest to the Sri Lankan authorities, to the extent that prompted him to leave the country in 2012.

2. The delegate accepted that in 2008 the first applicant was targeted and held for three days by unknown people, where he remained in hiding at least with three other people. The delegate referred to the first applicant’s claim that he remained in hiding for the next 12 years. The delegate observed that if the first applicant was of any adverse interest to the Sri Lankan authorities or related groups because of living in a particular area or because of his cousin, that he would have been located during the four years he resided in that place. The delegate did not accept the veracity of the first applicant’s claim and concluded that the first applicant had fabricated that event to strengthen his overall claims.

3. The delegate did not accept that the first applicant was of an adverse interest of the authorities in Sri Lanka on account of his past residence in a particular area or his cousin’s support of the LTTE. The delegate was not satisfied that there is a reasonable possibility the first applicant would be attributed with having any association with the LTTE arising from his connections to his cousin or prior residence in the area controlled by the LTTE.

Refugee criterion assessment

1. The delegate did not accept that the first applicant’s family were continually harassed or that the first applicant went into hiding. The delegate was not satisfied the first applicant is of ongoing interest to the Sri Lankan authorities on account of any perceived or discernible affiliation with the LTTE or Tamil nationalism. The delegate considered it unlikely that the first applicant would be subjected to anything more than an administrative screening upon his return to Sri Lanka.

2. The delegate was not satisfied that the first applicant would be of any particular interest to Sri Lankan authorities and did not accept that the first applicant had been imputed with any pro-LTTE or separatist political opinion by the Sri Lankan authorities. The delegate observed that the first applicant did not seem to possess any other profile that would potentially be of adverse interest to the authorities or anyone else.

3. The delegate was not satisfied that the limited website disclosure gave rise to a reasonable possibility that the first applicant would be harmed should he return to Sri Lanka. The delegate found the first applicant’s fear in relation to the website disclosure not to be well founded.

4. The delegate was not satisfied that there is a real chance of persecution of the first applicant in Sri Lanka for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act. The delegate found the first applicant is not a refugee as defined in s.5H of the Act and that the criterion under s.36(2)(a) of the Act is not satisfied. The delegate found that the first applicant failed to meet the criterion under s.36(2)(a) of the Act.

Complementary protection assessment

1. The delegate found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed to Sri Lanka, there is a real risk the first applicant will suffer significant harm as required under s.36(2)(aa) of the Act.

2. The delegate found the first applicant is not a person in respect of whom Australia has protection obligations as outlined under s.36(2)(aa).

3. The delegate found that the applicants were not excluded fast tracked applicants.

The Authority

1. By letter dated 15 June 2016 sent to the applicants, the Authority acknowledged the referral of the matter to it on 14 June 2016. The Authority identified that it had been provided with information relevant to the applicants’ case and that it would proceed to make a decision. The Authority identified attached information in relation to the new information that had been considered only in limited circumstances.

Applicant’s letter dated 4 July 2016 providing new information

1. By email dated 4 July 2016, the first applicant responded to the letter dated 9 June 2016 and in particular to the attachment in the letter dated 15 June 2016 in relation to the information sheet which indicated that new information can be considered if there are exceptional circumstances that can justify the Authority considering the same.

2. The first applicant contended that there was further information that was relevant which was not provided to the Department when the delegate made its decision. The first applicant expressly said that the new information that was being provided was not provided to the delegate before the rejection of the application.

3. By letter dated 4 July 2016, the first applicant stated that he was of the opinion that if he got the opportunity to provide the following information to the delegate before it made its decision it would have definitely affected the delegate’s decision. The first applicant then contended that after he had attended the interview he was satisfied that he would be granted protection and would not be sent back to Sri Lanka.

4. The first applicant then set out what he alleged to be the new information under heading, “New Information.” The first applicant referred to the proposition that after arriving in Australia criminal minded CID officers have been harassing his wife and children since then. The first applicant alleged that he indicated this to the delegate and that this was not taken into consideration when deciding his case.

5. The first applicant alleged that the situation turned out to be more dangerous after the CID officers started to arrest his extended family members who were in a particular area. The first applicant referred to his sister’s family members and his wife’s family members being presently targeted by the CID officers. The first applicant referred to having obtained this information only recently before his case was rejected, and hence he considered these as real evidence to be taken in consideration. 

6. The first applicant referred to his sister’s husband’s cycle shop and that in 2008 someone was shot at the entrance to the cycle shop, and that his brother was arrested as the LTTE cadre escaped arrest and was branded an LTTE suspect. The first applicant referred to an event in 2013 and referred to his elder sister being married to his wife’s brother, who owns a business dealing with repairs and alleged that his sister and his wife’s brother were arrested. The first applicant alleged that during the interrogation, the CID officers mentioned that they were aware that the first applicant and the applicant’s son had fled Sri Lanka illegally by boat.

7. The first applicant alleged his brothers in law were taken for interrogation separately and questioned as to their involvement in the LTTE before 2003. The first applicant alleged that the CID officers interrogated them about the applicant’s involvement as well. The first applicant alleged that the officers continue to interrogate them and ordered them to report to them when they arrest the first applicant at the airport on his arrival into Sri Lanka. The first applicant alleged that these officers have indicated that the he had been serving as an LTTE cadre fighting in the Sri Lankan Army in the past and had escaped arrest before they had confirmed his participation in the war.

8. The first applicant alleged that his brothers in law were released after the intervention of local members who bribed the CID officers. The first applicant alleged the CID officers are still visiting the applicant’s home asking whether he had returned back by illegal means into Sri Lanka. The first applicant alleged that his brother in laws were told that he would be taken away and killed for escaping by illegal means and for waging war against the Sri Lankan Army.

9. The first applicant alleged that in May 2016 two CID officers had visited his home and questioned his wife for living in a particular town as to the applicant’s expected return back to Sri Lanka. The first applicant alleged in the letter that the officers asked his wife why she was living in a particular area, and that the officers knew that she was alone after the children had left to go to school and visited her and questioned her about their involvement in the LTTE in the past between 1990 and 2003.

10. The first applicant alleged that his wife repeatedly denied any involvement in the LTTE and that the officers had sexually abused his wife. The first applicant alleged that the officers warned his wife to keep the matter secret and if she attempted to publicise their atrocity she would be taken away and killed. The first applicant alleged that the officers visited his wife repeatedly and that she had to move to another location to evade further sexual harassment. The first applicant alleged that relatives and neighbours, including doctors, became aware that the CID officers had raped his wife and that his wife had attempted suicide before the children came to realise what had happened to her. The first applicant alleged that his son in Australia is unaware of these incidents and asked that the information be treated as secret as it could affect his children’s life.

11. The first applicant alleged that his children in Sri Lanka questioned his wife about what happened, but she had managed to convince them that the rumours were false. The first applicant alleged that he is unable to protect his wife, being her husband, and that he is mentally traumatised and depressed from the time he heard of this information.

12. The first applicant alleged that the CID officers are visiting his relatives and are threatening them with imprisonment if they inform the Human Rights Organization or Red Cross or any other local or foreign media as to these atrocities. The first applicant alleged the CID told his wife that when they arrest him on his return she would be left alone. The first applicant alleged that the CID officers threatened his wife that if he tried to escape arrest from them then his older twin son would be abducted and his brothers in law would be taken into custody. The first applicant alleged further matters that there is no rule of law in Sri Lanka.

13. The first applicant referred to the data disclosure. The first applicant referred to the interview and suggested that he feared to mention information about him and his family as he feared that either the delegate or the interpreters could pass that information on to Sri Lankan authorities.

14. The first applicant referred to concerns in relation to the CID officers and alleged that no foreign journalists are getting access to the innocent victims, and the ex-president is escaping from being tried for genocide and the present president is protecting him. The first applicant alleged that this was new information before the Authority to consider. The first applicant alleged he feared to mention these during the interviews as he could be deported by the Australian Government, which have already deported Sri Lankan Tamil boat arrivals in the past, and that he did not want to be one of them. The first applicant also made reference in the letter to further activities whilst in the refugee camp.

Consideration of information before the Authority

1. The Authority identified that it had regard to the material under s.473CB of the Act. The Authority expressly referred to having received a submission from the first applicant dated 4 July 2016.

2. The Authority made reference to the fact that there were aspects of the submission that reiterated the first applicant’s claims for protection as stated in a Safe Haven Enterprise visa application, and that the Authority did not consider that to be new information, and accordingly have regard to it.

3. The Authority also referred to the first applicant raising just before his application to the department was finalised, that the criminal investigation department in Sri Lanka arrested his extended family members, that in May 2016 his wife was sexually assaulted by CID officers on the basis of the applicant’s involvement with the LTTE, and his subsequent illegal departure to Australia. The Authority also referred to the first applicant raising that his wife had subsequently attempted to commit suicide and that while residing in a particular area the first applicant had been forced to work for the LTTE, and would be identified upon return by ex-LTTE cadres who now work for the CID.  The Authority especially referred to the fact that this information was not before the delegate and that the Authority considered this to be new information.

1. The Authority referred to the fact that the first applicant was interviewed in relation to his claims for protection on 28 October 2015 with his migration agent and that during the interview, the first applicant was provided with an opportunity to present all his claims for protection. The Authority made reference to the fact that at the end of the interview, the delegate provided the first applicant with an opportunity to submit any further information and further detail in relation to his claims for protection.

2. The Authority referred to the fact that the delegate also provided the applicant’s representative with an opportunity to provide a written submission which was in fact, provided to the delegate on 11 November 2015.  The Authority also noted that during the interview, it was explained to the first applicant the importance of providing all his claims for protection as early as possible. The Authority also noted that the first applicant was represented by a migration agent.

3. The Authority referred to the date of the decision and relevantly said that this new information relates to events which occurred prior to the primary decision being made. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering the new information.

4. The Authority also referred to a letter written in support dated 22 June 2016 and Dr Copeland’s comments. The Authority was not satisfied that there were exceptional circumstances to justify considering that new information.

Refugee criterion assessment

1. The Authority identified the first applicant’s claims and evidence, in particular, that the first applicant was a Tamil Hindu born in a particular area and province and accepted that the first applicant had some vulnerabilities and expressly noted that the Authority had regard to this.

Consideration of the applicant’s fear of harm from the Sri Lankan Authorities

1. The Authority referred to the first applicant’s claims and was not satisfied the first applicant was pursued subsequent to his arrest in 2008 or was of any interest to Sri Lankan authorities after 2008.

2. The Authority found the first applicant’s assertion of going into hiding during the period post 2008 to be inconsistent with his actions. The Authority found that if the Sri Lankan authorities were genuinely interested in the applicant, they would have pursued him as they did with many other LTTE suspects at that time, as cited in the country information. The Authority was not satisfied the Sri Lankan authorities pursued the first applicant subsequent to his 2008 arrest.

3. The Authority referred to expressly accepting that the first applicant had been arrested on two occasions in the past and despite that, was not satisfied that the Sri Lankan authorities had a continued adverse interest in the first applicant subsequent to his 2008 arrest. The Authority was not satisfied the Sri Lankan authorities suspected the first applicant of having any links or association with the LTTE after his release in 2008.

4. The Authority referred to having accepted that the first applicant was questioned and arrested in the past.  However, this was accepted on the basis that he was released and not sent to a rehabilitation camp and not pursued after 2008. The Authority was satisfied that the Sri Lankan authorities did not suspect the first applicant of having any involvement with the LTTE subsequent to his 2008 arrest. The Authority was not satisfied that the applicant’s wife and son had been questioned. The Authority was not satisfied that if the first applicant returned to Sri Lanka he would face any real chance of serious harm on the basis of his earlier arrests or alleged LTTE involvement.

5. The Authority did not accept that the Sri Lankan authorities have any continuing suspicion that the first applicant has been associated with the LTTE. The Authority was not satisfied that the first applicant has any real chance of facing serious harm on the basis of an association with the LTTE upon return to Sri Lanka now or in the reasonably foreseeable future.

6. The Authority was not satisfied the first applicant has a real chance of serious harm upon return to Sri Lanka on the basis of being a Tamil from the North and/or Eastern Provinces of Sri Lanka, now or in the reasonably foreseeable future.  The Authority was not satisfied that the applicant’s fear was well founded.

Consideration of claims of failed asylum seeker/illegal departure/data breach

1. The Authority was not satisfied that the first applicant has a well-founded fear of persecution as a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.

2. The Authority found the first applicant did not have a profile which would attract adverse attention of the Sri Lankan authorities. The Authority was not satisfied the first applicant has a real chance of serious harm on the basis of the data breach now or in the reasonably foreseeable future. 

3. Taking the first applicant’s circumstances into consideration individually and cumulatively, the Authority found the first applicant not to be of adverse interest to the Sri Lankan authorities on the basis of being a Tamil or being suspected of having links to the LTTE. The Authority found the first applicant will be returning as someone who departed illegally from Sri Lanka and will be returning as a failed asylum seeker whose details were published by the data breach. However, the Authority found the first applicant’s claims in their totality did not give rise to a real chance of serious harm now or in the reasonably foreseeable future. The Authority was not satisfied that the first applicant had a well-founded fear of persecution.

Consideration of Complementary Protection

1. The Authority made reference to the short period that the first applicant may be held in detention and was not satisfied this amounts to significant harm. The Authority made reference to the fact that while prison conditions may be poor, country information indicates that this is due to overcrowding, poor sanitation and lack of resources. The Authority was not satisfied that this amounts to the death penalty, arbitrary deprivation of life or torture, or that the harm would be intentionally inflicted. The Authority was not satisfied there is an intention to inflict pain or suffering or cause extreme humiliation. The Authority found there is not a real risk to the first applicant of significant harm on the basis of the applicant’s detention upon return to Sri Lanka for a brief period.

2. The Authority accepted that the first applicant will be required to pay a fine however, the Authority was not satisfied that the imposition of the fine amounts to significant harm. The Authority found that the fine and/or the potential of being held in detention, did not amount to the death penalty, arbitrary deprivation of life, torture, or that there was an intention to inflict pain or suffering or cause extreme humiliation. The Authority was not satisfied that the payment of the fine amounts to significant harm as defined under s.36(2A) of the Act.

3. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being returned from Australia to the receiving country, there is a real risk the first applicant will suffer significant harm. The Authority found that the first applicant did not meet the criterion under s.36(2)(aa) of the Act.

The Authority’s conclusion

1. The Authority found the first applicant was not a person in respect of whom the criteria under s.36(2) of the Act were met and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:-

   Ground 1

   The IAA failed to take “relevant considerations" into account when inferring that there are no “exceptional circumstances” to justify considering new information [5].

   PARTICULARS

   (i) The delegate's decision not to grant the applicant a protection visa was made on 9 June 2016 [5].

   (ii) The applicant provided written submissions through his representative to the IAA on 4 July 2016 after the delegate's decision had been made [5].

   (iii) The submission indicates that in May 2016 certain incidents listed below had occurred,

   a. that the applicant's wife had been “sexually assaulted"  by CID officers on the basis of the applicant's involvement with the LTTE and his subsequent illegal departure to Australia [5].

   b. that the applicant's wife attempted to commit suicide [5].

   c. that the applicant had been forced to work for the LTTE and will be identified upon return by ex-LTTE cadres who now work for the CID [5].

   (iv) At [12] the IAA states,

   . . . The applicant has claimed to have suffered from torture and trauma while living in Sri Lanka. The applicant was provided assistance in lodging his SHEV application through the Department's PAIS. I accept the applicant has some vulnerabilities and I have had regard to this.

   (v) Having accepted at [12] that the applicant has some vulnerabilities the IAA failed to satisfy itself that there are exceptional circumstances to justify considering the new information provided by the applicant.

   (vi) The extent of the applicant's vulnerabilities is unknown at this point of time. We would be able to provide more particulars on this point once the court book is made available to us.

   Ground 2

   The IAA's decision is affected by jurisdictional error as the finding made at [26] is irrational, illogical, or so unreasonable that no reasonable decision maker could make it.

   PARTICULARS

   (i) At [27] the IAA accepted that the applicant has been questioned and arrested in the past.

   (ii) At [18] the IAA accepted that the applicant was arrested, detained and mistreated in 1992. “Mistreatment" is an understatement as the applicant claimed to have been detained for 97 days and tortured [8], the IAA appears to have inferred that such treatment amounts to “mistreatment".

   (iii) At [19] the IAA accepted that the applicant was arrested in 2008.

   (iv) At [25] the IAA accepts that on the two occasions the applicant was arrested, he was arrested on the basis of “being suspected of having LTTE involvement”

   (v) At [26] the IAA accepted that the applicant's father disappeared.

   (vi) At [26] the IAA accepted that that the applicant's cousin was a supporter of the LTTE movement.

   (vii) At [26] there is reference to one of the risk profiles as recorded in the UNHCR Eligibility Guidelines (Family members of former LTTE members).

   (viii) At [26] the IAA infers that as there is no evidence to indicate that the applicant's association to his father or cousin led to the applicant's arrest or suspicion of having an association to the L TTE.

   (ix) The IAA's decision is affected by jurisdictional error as the finding made at [26] is irrational, illogical, or so unreasonable that no reasonable decision maker could make it as it fails to consider the nature of harm suffered in the past by the applicant, aspects of the claims made in particular the fact that at least one member of the applicant's family had clear links I connections to the LTTE which were accepted by the IAA.

2. I note in relation to Ground 2 that Mr Hodges, the solicitor for the applicants, did not press that ground, although Mr Hodges acknowledged that he did not formally abandon the ground. 

Consideration

Ground 2

1. In relation to Ground 2, it is apparent that the Authority took into account the first applicant’s claims and evidence and made findings that were open to the Authority. Those findings made by the Authority cannot be said to lack an evident and intelligible justification. 

2. It is apparent on the face of the Authority’s reasons that it took into account the whole of the first applicant’s claims and evidence. Paragraph 26 of the Authority’s reasons refer to the first applicant claiming his father disappeared and that there was no evidence to indicate that he was a member of the LTTE or supported the LTTE in their capacity. The first applicant also claimed his cousin was a supporter of the LTTE movement however, the first applicant was unable to provide any further detail and was not aware of his cousin’s current whereabouts.

3. The Authority found that there is no evidence before the Authority to indicate the first applicant’s association to his father or his cousin led to the first applicant’s arrest or suspicion of having an association with the LTTE. That finding was open to the Authority and cannot be said to be irrational or unreasonable. No jurisdictional error is made out by Ground 2.

Ground 1

1. In relation to Ground 1, Mr Hodges, the solicitor for the applicants, took the Court to the statutory provisions in the Act and in particular, the meaning of new information under s.473BB of the Act as identified in s.473EC and to the terms of s.473DD of the Act.

2. The solicitor for the applicants contended that the incidents identified in the first applicant’s submissions and in particular, the wife’s alleged sexual assault and alleged attempted suicide had taken place over a period of time that post-dated the decision of the delegate.

3. The solicitor for the applicants made reference to the first applicant’s vulnerability and to the first applicant’s fears of being imputed as being an LTTE supporter and to the first applicant’s particular circumstances in relation to the first applicant having been arrested on two previous occasions. Mr Hodges, the solicitor for the applicants submitted that there should have been an express reference to the first applicant’s particular circumstances and the whole of them in considering the exercise of power under s.473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information. In exercising the power under s. 473DD of the Act, it is not necessarily for the Authority to set out all the first applicant’s circumstances in considering whether to exercise the power under s.473DD of the Act. On a fair reading of the Authority’s reasons, it is apparent that the Authority did take into account the first applicant’s claims in relation to considering whether there were exceptional circumstances to justify considering the new information.

4. In circumstances where the first applicant in his submission, expressly acknowledged that he obtained the information only recently before his case was rejected, it was open to the Authority to make a finding that the new information related to events which occurred prior to the primary decision being made. Further, in circumstances where information had been provided by the first applicant allegedly from his wife concerning his claims at the time of his statement, it was open to the Authority to find that it was not satisfied that there are exceptional circumstances to justify considering the new information.

5. Ground 1 is in substance, an invitation to this Court to engage in an impermissible merits review. I do not accept that the Authority failed to take it into account relevant considerations in exercising the power in s.473DD of the Act. I do not accept that the Authority failed to consider whether there were exceptional circumstances to justify considering the new information. No jurisdictional error is made out as alleged in Ground 1 of the application.

Conclusion

1. The application is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 March 2017