CIB23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 878
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIB23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 878
File number: MLG 1653 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 4 October 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority made adverse credibility findings that were illogical or irrational – whether Authority failed to consider a claim clearly articulated by applicant in finding that applicant was not owed complementary protection – whether Authority’s alleged failure to consider applicant’s claim was illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 473CA, 476, 477 Cases cited: EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 26 September 2023 Place: Perth Counsel for the Applicant: Mr J McComber Solicitor for the Applicant: Hannan Tew Lawyers Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1653 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIB23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
4 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority). The applicant now seeks judicial review of the Authority decision under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on an amended application which raises three grounds, asserting that the Authority decision is affected by jurisdictional error because:
(a)the Authority decision was vitiated by illogicality and/or irrationality, particularly insofar as the Authority relied on the applicant’s failure to refer to some of his claims in his protection visa interview as a basis for making adverse credibility findings against him;
(b)the Authority failed to consider a claim clearly articulated by the applicant, namely that his life was threatened by Sri Lanka’s Criminal Investigation Department (CID), in finding that he was not owed complementary protection; and
(c)the Authority’s failure to consider, in assessing whether the applicant was owed complementary protection, the threat to the applicant’s life made by the CID was illogical and/or irrational.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. I therefore dismiss the application to this Court.
VISA APPLICATION AND DECISIONS
The applicant applied for a protection visa on 7 February 2016. His application was accompanied by a nine page statement dated 22 January 2016 in which the applicant set out his claims for protection (written statement).
On 23 May 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview). After that protection visa interview the applicant provided a submission and some further identity documents to the Department.
A delegate of the Minister decided not to grant the applicant a protection visa on 15 December 2016. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
On 5 October 2017 the Authority affirmed the delegate’s decision. Those parts of the Authority decision that are relevant to the grounds raised before this Court are set out or summarised in the discussion of the grounds below.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 2 November 2017. This application was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 29 August 2023 which contains the following grounds of application:
1.The Second Respondent’s decision is affected by jurisdictional error on the basis that its state of non-satisfaction as to the matter prescribed by Schedule 2 Criterion 790.221(2) was vitiated by illogicality and/or irrationality.
Particulars
A.It was a criterion for the grant of a Safe Haven Enterprise (subclass 790) Visa that ‘[t]he Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.’
B.In determining that the applicant was not a refugee for the purposes of s 36(2)(a) of the Act, nor owed complementary protection obligations under s 36(2)(aa), the Second Respondent found that the applicant;
i. exaggerated his protection claims;
ii. fabricated aspects of his protection claims;
iii. was otherwise not credible.
C.Those adverse credibility findings were central to the formation of the Second Respondent’s state of non-satisfaction as to the matters prescribed by Schedule 2 Criterion 790.221(1).
D.In making the adverse credibility findings, the Tribunal relied on the applicant’s failure to repeat certain claims advanced in a previously disclosed written statement during the protection visa interview conducted by the a delegate of the Respondent.
E.The Second Respondent’s reliance on the applicant’s failure to repeat claims already advanced in writing during his protection visa interview was illogical and/or irrational in circumstances where the delegate of the First Respondent conducting the protection visa interview:
i.stated at the start of the interview, “The officer who decides your application for a protection visa will take into account all the information you have provided to the Department, including this interview” [emphasis added]; and
ii.did not convey to the applicant that he was required to repeat claims already advanced in his written statement; and
iii.did not warn the applicant that a failure to repeat claims already advanced in his written statement could be used as a basis to draw adverse inferences regarding his credibility; or
iv.expressed no concerns as to the applicant’s credibility in response to the applicant’s representative asking, near the conclusion of the interview, whether the delegate had any credibility concerns.
2.The Second Respondent’s decision is affected by jurisdictional error as it failed to consider a claim clearly articulated by the applicant – that his life was threatened by officers of the Sri Lankan Police Service’s Criminal Investigation Department (CID) – in determining that he was not owed complementary protection obligations, as codified by s 36(2)(aa) of the Act.
Particulars
A.The Applicant claimed, and the Second Respondent accepted, that in 2011 officers of the CID threatened to kill the Applicant.
B.The Second Respondent did not consider that the Applicant had previously been threatened with death by state actors when deciding whether the Applicant was owed complementary protection obligations, specifically in relation to whether the Applicant would be arbitrarily deprived of his life,
3. In the alternative to Ground 2, the Second Respondent’s failure to consider the threat of death previously levied at the Applicant by state actors, which it had already accepted did occur, was irrational and/or illogical, such that it’s state of satisfaction as to whether the requirements of s 36(2)(aa) was satisfied was vitiated.
The evidence before the Court comprises the court book filed by the Minister, which was marked as Exhibit 1, and the affidavit of Joel Kent McComber filed on behalf of the applicant on 29 August 2023. Mr McComber’s affidavit annexes a transcript of the applicant’s protection visa interview.
GROUND 1: IS THE AUTHORITY DECISION, AND ITS FINDING ADVERSE TO THE APPLICANT, IRRATIONAL OR ILLOGICAL?
By ground 1, the applicant asserts that the Authority decision is illogical or irrational because the Authority made adverse credibility findings against the applicant based on his failure to mention at the protection visa interview certain claims that he had advanced in his written statement. In advancing this submission, the applicant draws particular attention to the conduct of the protection visa interview and representations made to him at that interview.
Authority decision and relevant context
The Authority rejected some of the claims that the applicant advanced in his written statement because he did not refer to those matters in his protection visa interview.
Most notably, the applicant advanced a claim that he and his father were of interest to the Sri Lankan authorities because of their relationship with his father’s cousin (cousin) who was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) in 2006. The Authority made the following findings at [15] and [16] of its reasons in relation to this claim, which are relevant to this ground of review (emphasis added, footnote omitted):
15.I have formed the view, however, that the applicant has exaggerated the authorities’ level of interest in [the cousin] and by association, in him and his father. The applicant claimed that from late 2011 military intelligence CID suddenly started to visit [the cousin] regularly. His evidence at interview, however, was that [the cousin] was the subject of routine monitoring by the authorities following his release from rehabilitation and that the authorities came every month for the purpose of monitoring [the cousin]. This is consistent with country information that many of those released from rehabilitation were subject to ongoing monitoring and reporting conditions and I accept that from the time of his release [the cousin] was subject to routine monitoring in the form of home visits by the authorities. I also accept it is plausible that on occasion, as [the cousin’s] carers, the applicant and/or his father were present when the CID came to monitor [the cousin] and that they questioned the applicant and his father on a couple of occasions about their own support for the LTTE. However, in his SHEV interview, the applicant did not claim that anything happened either to him, his father or [the cousin] during these visits.
16.Specifically, he did not refer in his SHEV interview to the claims in his written statement that: the authorities demanded that [the cousin] provide a confession and threatened him with an enquiry by the TID; that in 2012 [the cousin] was threatened with detention at … prison, the applicant was accused of being an LTTE supporter and was asked about his own movements during the war and about family members who had been killed in the Vanni war - he was hit on the head and shoulders, punched and screamed at in Sinhalese; and on another occasion in 2012, the same CID officers beat [the cousin] almost unconscious. He also didn’t refer to his claims that they wanted [the cousin] to sign a prepared confession in the Sinhalese language but he refused; he and his father stayed at [the cousin’s] until they could arrange for [the cousin] to move to Colombo to live with his sister; or that the CID visited and questioned two of [the cousin’s] brothers and threatened the entire family if [the cousin] was not produced to the CID. It is not credible that the applicant would forget to mention any of these very serious and significant incidents including his own assault if in fact they occurred and I have formed the view that he has fabricated these aspects of his claims in order to suggest a greater level of interest in [the cousin] by the authorities and by extension, in the applicant himself.
The Authority also rejected a claim advanced by the applicant that armed paramilitary men tried to abduct his father. After noting some discrepancies between his written statement and his oral evidence at the protection visa interview, the Authority continued at [20] and [21] (emphasis added):
20.In his written claims he gave an entirely different time-frame and explanation for his decision to go into hiding at [place]. He claimed that sometime after the 2012 white van incident, six armed men in civilian clothing came to his house in a white van, searched the rooms at gunpoint looking for his father and threatened to abduct and kill the applicant. In his interview, the applicant did not claim that there was any such incident.
21.I consider these discrepancies significant. I do not consider it is credible that he would fail to mention, when asked about his experiences, something as serious and significant as an attempt by armed men to kidnap him in a white van. I am not satisfied either that there was such an incident prompting the applicant to go into hiding or, in view of the discrepancies in his evidence, that armed paramilitary men tried to abduct the applicant’s father in July 2012. The applicant also failed to mention at interview the following other incidents referred to in his written statement: on one occasion his father saw a white van coming close to him near the local shop and escaped out the back door and that his father received threatening telephone calls in which he was threatened with death if he didn’t reveal [the cousin’s] whereabouts. On the basis that the applicant did not refer to any of these in his SHEV interview, I do not accept they occurred and have formed the view that the applicant has fabricated these claims in order to enhance his profile.
There were also other claims in the applicant’s written statement that the Authority noted the applicant had not referred to in his protection visa interview. The Authority noted that the applicant had referred in his written statement to the CID being interested in his father because of other family connections with the LTTE but did not refer to these relatives or interest from the CID in his father because of these relatives at his protection visa interview. The Authority also noted that the applicant did not refer to these relatives in the interview and did not claim that incidents involving these relatives had any ongoing repercussions for him: see [25] and [26].
In asserting that the Authority’s adverse credibility findings and decision were illogical or irrational, the applicant drew particular attention to one aspect of the information that he was given at the start of his protection visa interview. The applicant was told at the start of his protection visa interview (emphasis added):
So the purpose of this interview is for you to provide further information in support of your application for a protection visa. The officer who decides your application for a protection visa will take into account all information you have provided the Department, including this interview.
Relevant legal principles
The applicant asserts that the illogicality or irrationality arose in the Authority’s process of reasoning in the course of reaching a state of satisfaction (or in this case, in not reaching the state of satisfaction that the applicant met the criteria in s 36(2) of the Migration Act) which is a jurisdictional fact.
The leading case on illogicality and irrationality is the High Court’s judgment in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS). In that case, Crennan and Bell JJ said at [131] and [135]:
131.… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
The applicant also relies on the Federal Court’s judgment in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681 (EHF17). In that case, Derrington J said at [84]:
The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. That remains so even if there were an alternative path to the same conclusion, because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament…
Was the Authority’s adverse credibility finding illogical or irrational?
The applicant submitted that it was illogical or irrational for the Authority to make adverse credibility findings based on his failure to orally repeat at the protection visa interview claims that he had previously advanced in the written statement in circumstances where the delegate at the protection visa interview:
(a)represented to the applicant that the purpose of the protection visa interview was to provide further information about his claims for protection;
(b)represented to the applicant that all information he provided to the Department would be considered by the decision-maker;
(c)did not indicate to the applicant that he was required to repeat claims already advanced in writing;
(d)did not warn the applicant that a failure to repeat claims already advanced in writing might lead to an adverse credibility finding; and
(e)expressed no concerns as to the applicant’s credibility when specifically questioned on the matter by the applicant’s representative.
The Minister submitted that it was open to the Authority to rely on the applicant’s failure to raise claims at his protection visa interview in finding that he had exaggerated or fabricated certain claims, or that his evidence was otherwise not credible. The Minister referred to the significance of the claims that the applicant did not refer to at his protection visa interview and noted that the applicant had been informed at the protection visa interview that the purpose was to provide further information in support of his claims. The Minister further noted that the applicant had been asked why he was unable to return to Sri Lanka and was given an opportunity at the end of the interview to tell the delegate anything further that might be relevant. The Minister submitted that it was open to the Authority to consider that if the serious and significant events referred to in the applicant’s written submissions did occur, the applicant would have raised them during the protection visa interview when he had more than one opportunity to do so.
The Minister further submitted that the Authority decision did not turn solely on the applicant’s failure to discuss his claims at the protection visa interview and, in particular, the rejection of a claim by the applicant to have been the subject of an attempted abduction in a white van was based on discrepancies in his evidence. The Minister submitted that the delegate did not have any obligation to direct the evidence given by the applicant at interview or to warn the applicant of the risk of an adverse credibility finding. The Minister, in response to the applicant’s submission based on the representation that the interview was an opportunity to provide further information, submitted that there is nothing in the applicant’s answers at the interview to suggest that he relied on this representation in a way that curtailed his answers to the delegate. The Minister submitted that, although different decision-makers may have reasoned differently or reached a different conclusion, the reasoning process and finding made by the Authority were logically probative and it could not be said that no other rational or logical decision-maker could not have drawn the same conclusion.
I am not satisfied that the Authority’s reasoning process or its conclusion that the applicant did not meet the criteria for a protection visa were illogical or irrational in the sense described in SZMDS and EHF17. In reaching this conclusion, I have had regard to the transcript of the protection visa interview. The applicant was asked a number of open questions, such as:
(a)‘[A]re you able to tell me why you are unable to return to Sri Lanka?’
(b)‘Was there a particular incident that prompted you make arrangements to leave?’
(c)‘We might take a few minutes break now and you can have a quick discussion with your legal representative. When you come back from the break, I will be asking you if there is anything else you would like to tell me, including if there are any other reasons why you are unable to return to Sri Lanka. I’m interested in how your father and [the cousin] are still living in Sri Lanka, yet they would appear to be more at risk than new because one was in the LTTE and your father was helping him. So I’m interested in why your situation is different to other members of your family who are still living in Sri Lanka…’
(d)‘So now we’ve come back from the break, is there anything else that you would like to tell me?’
(e)‘Is there anything that you would like your legal representative to say on your behalf?’
(f)‘[I]s there anything else you would like to tell me today?’
The applicant had several opportunities to explain in his own words his claims for protection. I accept the Minister’s submission that the claims that the Authority rejected, in full or in part, because of the applicant’s failure to raise them at the protection visa interview, were significant in the context of his claims overall. The Authority clearly considered that the claims it rejected at [16] and [21] of its reasons were significant, as can be seen from the emphasised portions of those paragraphs in the extracts above. It was open to the Authority to reason that the applicant would not have failed to mention such significant claims when given opportunities to do so at his protection visa interview if those events had actually happened. Another decision-maker may have reached a different conclusion, but it cannot be said that the decision reached by the Authority was not open to it on the material before it, or that there was no room for a logical or rational decision-maker to reach the same decision based on the material before the Authority.
The matters referred to in the applicant’s submissions do not alter this conclusion. The representations that the protection visa interview was an opportunity to provide further information in support of the protection visa application and that the decision-maker would take into account all information provided to the Department, including the interview, were not inaccurate. The Authority in reaching its decision considered the content of the applicant’s protection visa interview and the content of his written statement and other documents provided to the Department. A representation that a person has an opportunity to provide further information does not amount to a representation that matters already referred to in the written statement should not be repeated.
I accept the Minister’s submission that the delegate was not required to put the applicant on notice that a failure to mention at the protection visa interview claims or information set out in his written statement might cause a decision-maker to make adverse credibility findings against him or to not accept that the events described had happened. The interviewer was not required to disclose his or her thought processes to the applicant or to make any general observations about the assessment of credibility.
Conclusion in relation to ground 1
The applicant has not established that the Authority’s reliance on omissions at his protection visa interview in finding that he had fabricated or embellished some of his written claims, or its conclusion based on this reasoning that it was not satisfied that the applicant met the criteria in s 36(2) of the Migration Act, was illogical or irrational. Ground 1 therefore fails.
GROUND 2 AND 3: DID THE AUTHORITY CONSIDER THE APPLICANT’S CLAIM TO HAVE BEEN THREATENED TO DEATH BY THE CID IN ASSESSING WHETHER HE WAS OWED COMPLEMENTARY PROTECTION?
Ground 2 and 3 are pleaded in the alternative and are based on the same findings made by the Authority. Both grounds relate to the Authority’s consideration of the applicant’s claims in the context of the complementary protection criterion, although the Authority’s findings in this regard must be considered in the context of its earlier findings for the purpose of assessing whether the applicant met the refugee criterion.
Relevant claims by the applicant and findings made by the Authority
Relevantly, the Authority found at [17] that:
I accept it is plausible that the CID questioned him once in 2011 on his way to school. The evidence he gave in his SHEV interview was consistent with his written claims. He said they asked him in broken Tamil what his relationship was with [the cousin], asked if he supported the LTTE and scolded him in bad language because they thought he might be lying. I am also prepared to accept that they also threatened to kill him if he didn’t tell the truth.
While the Authority accepted that the applicant had once been threatened by the authorities in Sri Lanka and questioned on a few occasions, in assessing whether the applicant met the refugee criterion, the Authority did not accept that either the applicant or his father were in hiding or were persons of interest at the time the applicant left Sri Lanka, or that he experienced any further interest from the authorities or further harm after being questioned by the authorities. Taking into account these and other findings, the Authority was not satisfied that the applicant would face a real chance of serious harm if he were to return to Sri Lanka.
In assessing whether the applicant met the complementary protection criterion, the Authority relevantly said at [45]:
I am not otherwise satisfied the applicant is at risk of significant harm if he is returned to Sri Lanka. I have found that the applicant was not a person of interest at the time he left. I have accepted that he was questioned about his relationship to [the cousin] and on one occasion threatened. However, his evidence is that [the cousin] is now living back next to the applicant’s home and he has not claimed that [the cousin] has experienced any recent incidents of harm or any level of interest since moving back to his home. I am satisfied the applicant is not at risk of significant harm on the basis of his imputed political opinion or ethnicity, his origins in the north, his family members, his age or his gender.
Did the Authority fail to consider the applicant’s claim in assessing whether he was owed complementary protection?
I do not accept that the Authority failed to consider the applicant’s claim to have been threatened by members of the CID in assessing whether the applicant engaged Australia’s complementary protection obligations.
The Authority’s reasoning at [45] is clearly based on its earlier findings of fact. In particular, the Authority clearly acknowledged at [45] its earlier finding that the applicant had been threatened. On a fair reading of the Authority’s reasons, this is a reference back to its finding at [17]. The applicant submitted that it was relevant that the Authority did not at [45], or elsewhere in its consideration of the complementary protection claims, acknowledge that the threat it referred to was in fact a threat of death that was levied at the applicant by state actors. The applicant submitted that in disregarding its own finding that the fact that the threat was in fact made, the Authority made no finding regarding the credibility of the threat or the likelihood of the applicant being subject to similar threats in the future.
The applicant’s real complaint appears to be that the Authority’s finding that state actors in Sri Lanka had verbally threatened to kill the applicant is a very serious threat and warranted more comprehensive reasons.
The applicant’s submissions overlook two important features of the Authority’s reasons. First, the Authority at [45] expressly referred to its finding that the applicant was no longer of interest to the Sri Lankan authorities by the time he left Sri Lanka. Second, the Authority gave comprehensive reasons, albeit in the context of its consideration of whether the applicant met the refugee criterion, for finding that the applicant was no longer of interest to the authorities by the time he left Sri Lanka.
These two features are important because the role of the Authority in assessing whether the applicant engages Australia’s complementary protection obligations was to assess whether the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka. While past harm can be a guide, the test is necessarily forward-looking. Therefore, even though the Authority found that the applicant had faced a threat in the past, its finding that the applicant was of no interest to the authorities by the time he left Sri Lanka informed its conclusion that the applicant would not face a real risk of significant harm in the reasonably foreseeable future. Further, the Authority was entitled to rely on the findings of fact that it made in considering whether the applicant met the refugee criterion in its assessment of whether he met the complementary protection criterion. Its finding that, although the applicant had been previously threatened and questioned by the authorities, he was no longer of interest to them by the time he left Sri Lanka was, in the context of the present matter, dispositive of the applicant’s complementary protection claims.
In oral submissions, Counsel for the applicant referred to the final sentence of [45] and submitted that the Authority here considered whether the applicant may face harm for one or more of the reasons relevant to the refugee criterion, which do not apply to the complementary protection criterion. I do not accept that the final sentence of [45] was directed to the refugee criterion. Rather, the final sentence of [45] relates to the reasons that the applicant claimed that he would face harm. In particular, the applicant’s claim based on the threat to kill him was, on his own evidence, for reason of his association with the cousin. This clearly falls within the Authority’s reference to reasons relating to family members, which itself is not one of the reasons listed in s 5J(1)(a) of the Migration Act relevant to the refugee criterion.
I am satisfied that when the Authority’s reasons are read as a whole the Authority has clearly considered the applicant’s claim to have been threatened in reaching its findings in relation to the applicant’s complementary protection claims.
Is the Authority decision illogical or irrational?
Insofar as the applicant raises a claim of illogicality or irrationality by ground 3, the applicant’s assertion is that it was the Authority’s failure to consider the death threat that was illogical or irrational. For reasons already given, I do not accept that the Authority failed to consider the death threat made to the applicant. That assertion of illogicality or irrationality therefore fails.
In any event, having regard to the Authority’s reasons as a whole, the finding by the Authority that the applicant was no longer of interest to the Sri Lankan authorities, and its reliance on this finding in rejecting the applicant’s complementary protection claim, notwithstanding that he had once verbally been threatened with death by state authorities in Sri Lanka, was a conclusion that was open to a logical and rational decision-maker considering the evidence before the Authority.
Conclusion in relation to grounds 2 and 3
The applicant has not established jurisdictional error by grounds 2 or 3 of his application.
CONCLUSION
In circumstances where I have found the applicant has not established that the Authority decision is vitiated by jurisdictional error, it follows that the application to this Court must be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 October 2023
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