DAM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 942
•19 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 942
File number: MLG 1645 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 19 October 2023 Catchwords: MIGRATION LAW –– review of Immigration Assessment Authority decision – Class XE 790 Safe Haven Enterprise Visa – Sri Lankan citizen of Tamil ethnicity – IAA22 rejected a number of Applicant’s claims – whether IAA decision affected by jurisdictional error – whether IAA decision unreasonable, irrational or illogical – IAA comprehensively and reasonably considered Applicants claims – no jurisdictional error – Application dismissed with costs Legislation: Migration Act 1958 (Cth) s 476 Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submissions: 10 October 2023 Date of hearing: 10 October 2023 Place: Melbourne in person and by videoconference Counsel for the Applicant: Mr Foster Solicitor for the Applicant: Sentil Solicitor Counsel for the First Respondent: Mr Lessing Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1645 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
19 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application filed 12 June 2018, and amended 11 June 2021, be dismissed.
2.The Applicant pay the First Respondent’s costs in the sum of $8,371.30.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Application filed in this Court on 12 June 2018 (Application) and amended 11 June 2021 (Amended Application), the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) dated 18 May 2018 (IAA Decision). The IAA affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Class XE 790 Safe Haven Enterprise Visa (Visa).
This matter was heard on 10 October 2023 and proceeded in person and via video conference (Hearing). At the conclusion of the Hearing judgment was reserved.[1] These are the Reasons for Judgment in relation to the Hearing.
[1] Orders of Her Honour Judge C. E. Kirton KC, 10 October 2023, Order 3.
ISSUES IN DISPUTE
The issues in dispute in this matter are whether the IAA has committed a jurisdictional error in the IAA Decision by failing to consider aspects of the Applicant’s claims, making findings on the basis of incorrect facts, or coming to conclusions that can be properly categorised as unreasonable, irrational or illogical.
SYNOPSIS
The Court has determined that the IAA Decision does not contain jurisdictional error and therefore the Application as amended by the Amended Application should be dismissed with costs.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 19 September 2019, numbering 320 paginated pages (Court Book). The Court has reviewed the Court Book in detail. The Court Book contains all relevant information that was before the Delegate and the IAA and the respective decisions of each. On 2 October 2023, the Minister filed Written Submissions (Minister’s Submissions). The Minister’s Submissions accurately summarise the background to this matter. The Court adopts these submissions with amendment as follows.
The Applicant is a citizen of Sri Lanka and is of Tamil ethnicity, this also being his preferred language.
The Applicant travelled alone to Australia by boat in September 2012 and arrived in Australia on 25 September 2012 as an ‘irregular maritime arrival’.[2] The Applicant was thereafter sent to Christmas Island for processing.
[2] Court Book (CB) 33-34, 52, 65, 305, [1].
On 27 September 2013, the Applicant applied for a Protection (Class XA) visa (First Visa Application), wherein he provided information that his father, mother and four (4) siblings continued to reside in Sri Lanka.[3] Attached to the First Visa Application was a Statutory Declaration of the Applicant, which detailed the events leading up to the Applicant’s departure from Sri Lanka and his fears of returning.[4] The First Visa Application and relevant forms were completed by the Applicant with the assistance of a migration agent.[5]
[3] CB 44-45.
[4] CB 70-74.
[5] CB 101-103.
On 14 November 2015, the Department of Immigration and Border Protection (Department) wrote to the Applicant notifying him that the First Visa Application was invalid, and invited him to apply for alternative visas, including the Visa.[6] On 28 September 2016, the Applicant lodged an application for the Visa, with the assistance of a migration agent, signed on 13 September 2016 (Second Visa Application).[7] The Second Visa Application attached a number of documents, including: a summary of claims in a Statutory Declaration of the Applicant; translated copies of the Applicant’s identity card and Birth Certificate; excerpts of Sri Lankan newspaper articles; an Affidavit of the Applicant’s father; and a medical letter in respect of the Applicant’s brother.[8]
[6] CB 118-123.
[7] CB 129-165.
[8] CB 166-195.
On 24 March 2017, an alternative migration agent wrote to the Department confirming that he had been appointed as the Applicant’s authorised representative (Representative).[9] The Applicant and the Representative attended an interview at the Department on 7 April 2017 (SHEV Interview).[10] Subsequent to the SHEV Interview, the Representative provided a number of newspaper articles to the Department via email with respect to the experience of people of Tamil ethnicity in Sri Lanka.[11]
[9] CB 226-229.
[10] CB 230-231.
[11] CB 232-245.
On 28 July 2017, a psychological report of Melinda Austen, dated 15 July 2018 with respect to the Applicant, was sent to the Department by email from an officer at the Asylum Seeker Resource Centre.[12]
[12] CB 246-248.
On 20 October 2017, the Department notified the Applicant, via the Representative, that the Second Visa Application had been refused (Delegate’s Decision) on the basis that the Delegate was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Migration Act).[13] The Delegate’s Decision was referred to the IAA, as confirmed to the Applicant on 26 October 2017.[14]
[13] CB 249-272.
[14] CB 273-287.
On 15 November 2017, the Applicant, with the assistance of the Representative, provided another written Statement to the IAA, dated 14 September 2017, which further addressed his claims of fearing harm in Sri Lanka and detailing why the Delegate’s Decision was incorrect (Statement).[15]
[15] CB 293-298.
On 18 May 2018, in the IAA Decision the IAA affirmed the Delegate’s Decision and notified the Applicant and Representative of same on 21 May 2018.[16]
[16] CB 299-320.
IAA DECISION
The IAA Decision is located in the Court Book at pages 304 to 316.
The IAA acknowledged the Statement received on 15 November 2017 and commented that it contained within it new claims by the Applicant regarding his impaired ability to earn a livelihood and therefore subsist if forced to return to Sri Lanka. The IAA did not consider such claims to be genuinely held beliefs by the Applicant, but rather were made to simply ‘bolster his claim for protection’ given they had been absent from previous statements.[17]
[17] CB 305, [5].
In relation to the Statement, the IAA noted that references were made to country information that was not before the Delegate and therefore was ‘new information’. The IAA was not satisfied, pursuant to s 473DD(b) of the Migration Act, that there existed exceptional circumstances through which it could consider the new information.[18] The Applicant’s request to attend an interview before the IAA to discuss his claims was also dismissed on the basis that he had previously been told at the SHEV Interview that he may not have another opportunity to provide supporting information, and that he had been able to adequately present his claims, including those within the Statement.[19]
[18] CB 305, [6].
[19] CB 305, [7].
The IAA summarised the Applicant’s claims for protection, as they were made in two (2) previous statements, dated 29 September 2013 and 20 September 2016.[20] Of the Applicant’s claims, the IAA found as follows:
[20] CB 306, [8]; Written Submissions filed by the First Respondent (Minister) on 2 October 2023 (Minister’s Submissions), [15].
(a)It did not consider the Applicant’s evidence to be reliable with respect to his, and his family’s, involvement with the Liberation Tamil Tigers of Eelam (LTTE) from 2005 to 2006;[21]
[21] CB 308, [14].
(b)It accepted the Applicant’s consistent evidence regarding being detained and beaten in January 2007, being subjected to frequent ‘round-ups’, and required to report to the Sri Lankan Army once per month until May 2007;[22]
(c)It accepted that the Applicant resided and worked in the United Arab Emirates from September 2007 to October 2009;[23]
(d)It accepted that the Applicant may not have fully particularised his protection claims at the interview conducted upon his arrival in Australia;[24]
(e)It considered the Applicant’s claim of harassment and physical abuse in December 2010 was ‘fabricated to bolster his claim for protection’, however accepted that the Applicant was interrogated and beaten on four (4) occasions between December 2010 and May 2012;[25]
(f)It did not accept that the Applicant was required to report to authorities during the months prior to his departure for Australia;[26]
(g)It did not accept that he was a person with whom the Sri Lankan authorities were significantly interested in as a result of any imputed links to the LTTE, nor that any relatives had been contacted as a result of such purported interest;[27]
(h)It did not accept that authorities attended his family’s home in October 2013 threatening to arrest him upon his return to Sri Lanka;[28]
(i)Although it accepted that the Applicant’s father lost his leg as a result of a land mine in 2013, it did not consider that this was a deliberate or targeted incident related to the Applicant;[29]
(j)It did not consider there to be any evidence to support the Applicant’s claim as to his younger brother’s physical disability, nor that this would prevent him from being targeted by the authorities;[30] and
(k)It did not consider there to be any information supporting the Applicant’s claim that he would be unable to obtain employment or subsist if returned to Sri Lanka.[31]
[22] CB 308-309, [15]; 311, [23].
[23] CB 209, [16].
[24] CB 309, [18].
[25] CB 310, [21].
[26] CB 310-311, [22].
[27] CB 309, [16]; 311, [23]; 312, [26]-[27].
[28] CB 311, [24].
[29] CB 311-312, [25].
[30] CB 312, [28].
[31] CB 312, [29].
The IAA indicated a preference for the Department of Foreign Affairs and Trade 2017 Report with respect to Sri Lanka, over those newspaper articles previously provided by the Representative.[32] Having considered the relevant country information, the IAA considered that the situation for Tamils in Sri Lanka had ‘significantly improved’ since 2012 and was therefore not satisfied that there is a real chance the Applicant would face harm upon to return to Sri Lanka on the basis of his ethnicity, any imputed association with the LTTE,[33] or due to his time spent in Australia.[34] With respect to this latter point however, the IAA acknowledged that there is a possibility that the Applicant may be detained in prison and/or incur a fine upon his return given his mode of departure from the country, however it did not consider that any such action, if taken, would amount to serious harm to the Applicant.[35]
[32] CB 312-313, [30]-[32].
[33] CB 314, [33].
[34] CB 314, [36]-37].
[35] CB 315-316, [38] and [43].
Based on the evidence before it, the IAA was not satisfied that the Applicant met the criteria in s 36(2) of the Migration Act. The Tribunal therefore affirmed the Delegate’s Decision not to grant the Visa.[36]
[36] CB 316, [45].
PROCEEDINGS BEFORE THE COURT
On 12 June 2018, the Applicant filed the Application, together with an Affidavit of the Applicant, sworn 8 June 2018 (Applicant’s Affidavit). The Applicant was not legally represented at the time the Application and the Applicant’s Affidavit were filed.
The Applicant became legally represented on 14 November 2019,[37] and thereafter filed the following on 11 June 2021:
(a)The Amended Application;
(b)Outline of Submissions (Applicant’s Submissions); and
(c)A List of Authorities (Applicant’s List of Authorities).
[37] Notice of Address for Service, dated 14 November 2019.
The Court notes that the Amended Application was filed without prior leave of the Court. However, Orders were made by a Registrar of this Court on 24 August 2023, granting leave for the Applicant to file the Amended Application.[38] The Minister did not object to the Court’s consideration of the grounds of review as they appear in the Amended Application.
[38] Orders of Registrar Downing made on 24 August 2023, Order 4.
The Amended Application contains the following grounds of review (Grounds of Review):
1. The IAA erred when it did not accept the Applicant’s Claim that the CID went to his family home approximately one month after his departure from Sri Lanka, in October 2012 (Ground 1).
Particulars
a.[24]
b.The IAA had accepted
i.The Applicant was taken from his home by the SLA in January 2007, questioned and beaten and may have been subject to roundups around this time [23] [CB311];
ii.The Applicant was required to report to the CID camp on three or four occasions until May 2007, and was stopped and his ID checked in December 2009 [23] [CB311];
iii.The Applicant was beaten on four occasions from December 2010 until May 2012 [23] [CB311];
c.The IAA did not accept the Applicant’s Claim that the CID went to his family home approximately one month after his departure from Sri Lanka in October 2012, when it stated: ‘He said his parent’s (sic) told them he had gone to Australia and they threatened that if he returned to Sri Lanka they would arrest him. If this incident had indeed occurred I consider the applicant’s father would have noted it in his Affidavit dated September 2013, referred to above.’ [24] [CB311];
d.The finding is unreasonable, irrational and illogical, and demonstrates the failure of the IAA to engage in intellectual process since:
i.The IAA Failed to refer to or otherwise take into account the sense ‘3. On many occasions Sri Lankan security forces and the intelligent group came home in search of my son.’ [CB194];
ii.The IAA Had no basis upon which to assert that the Applicant’s father ’would have noted it in his Affidavit dated September 2013’, noting that the Affidavit was short on detail being of 8 sentences with less than 100 words; and the father was aged 58;
e.The IAA’s statement ‘That Affidavit refers to the incident in which the applicant’s father was injured, which occurred in early 2013, but does not indicate the CIA searched for the applicant after his departure,’ [24] [CB311] was incorrect since sentence 3 date is nonspecific;
f.The IAA thereby committed jurisdictional error.
2. The IAA erred when it did not accept the applicant has been of interest to Sri Lankan authorities since his departure from Sri Lanka (Ground 2).
Particulars
a.[27] [CB312];
b.See particulars in Ground 1.
3. The IAA erred when it stated ‘no evidence has been provided regarding the applicant’s brother’s capacity to work.’ (Ground 3)
Particulars
a.[29] [CB312];
b.The letter from Sai Baba Mediclinic [CB195] states inter alia:
i.‘…Jeyaveerasingam Jeyaruban of Thunnalai west Karaveddy underwent treatment for Dislocation of Right Shoulder at our Emergency Care Unit’;
ii.‘Complaints : Right shoulder pain, Difficulty in moving his right arm.’
iii.‘Diagnosis: Dislocation of Right Shoulder’
iv.‘Recommendations:
1)To take medicine regularly as prescribed specially for this condition.
2)To adapt directed life style change to ensure immobilisation to facilitate reunion
3)To consult doctor twice a week to estimate the condition and progress to revise the treatment plans.
4)To avoid physical activities and sports practice till full recovery.’
c.The letter clearly notes the problems as at time of writing, which would make physical activity using the right arm/ shoulder painful and contra indicated.
d.Accordingly there is clear evidence the brother was unable to work as at 31 October 2002;
e.The IAA did not refer to any updated medical material which indicated the shoulder had healed and did not preclude physical activity;
f.The IAA made an unreasonable illogical and irrational finding, thereby committing jurisdictional error.
4. The IAA erred when it stated ‘I consider it fanciful on the part of the applicant that the CID or SLA planted the landmine, or that the applicant’s father was deliberately targeted in this way.’ (Ground 4)
Particulars
a.[25] [CB312];
b.The Applicant had raised the claim concerning his father’s injury in the Applicant’s Statutory Declaration dated 20/9/2016 [CB174];
c.In the Statutory Declaration at [34], the Applicant did not specify where the bomb was located within the area his father was working, The bomb’s placement was however referred to in the Applicant’s later Submissions [CB295] as having ‘exploded at the gate entrance’. He also stated: ‘My father went to the same land for work earlier for two days. My father and other workers had gone into the same land two days earlier. On the third day, when my father opened the gare, the land mine exploded at the gate entrance. Therefore, I strongly believe he was targeted.’ [CB295] The area ‘had been declared clear of landmines’. [CB174]
d.The positioning of the land mine is significant but was not mentioned by the IAA which failed to comment on where the landmine was placed.
e.The IAA accordingly failed to address an aspect of the Applicant’s claims, and made an unreasonable finding.
(Words in bold added, otherwise without alteration)
The Hearing took place on 10 October 2023 in the Melbourne Registry of the Court and by videoconference. Myself and both Counsel for the Applicant and Counsel for the Minister appeared by videoconference. The Applicant attended the courtroom at the Melbourne Registry, together with his Solicitor.
The Applicant relied on: the Amended Application; the Applicant’s Affidavit; the Applicant’s Submissions; the Applicant’s List of Authorities; and the Court Book.
The Minister relied on: the Response, filed on 23 July 2018; the Minister’s Submissions; the Minister’s List of Authorities, filed on 4 October 2023; and the Court Book.
The Court has also considered the transcript of the Hearing, where both Counsel for the Applicant and Counsel for the Minister made submissions.
The Court will now consider each of the Grounds of Review.
CONSIDERATION
The Court notes at the outset that it cannot engage in impermissible merits review and therefore, to the extent that any of the Grounds of Review in the Amended Application require it to do so, this will not be considered by the Court.
Further, the Court notes that there is a high threshold for a finding of unreasonableness, irrationality and illogicality, as the High Court explored in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS). In SZMDS, Crennan and Bell JJ stated, at [130]-[131]:
130.[…] “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. […]
131.[…] 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.
Ground 1
Ground 1 asserts that the IAA committed a jurisdictional error through its failure to accept the Applicant’s claim that CID (Criminal Investigations Department) attended his family home in October 2012, one (1) month after his departure from Sri Lanka. Ground 1 asserts that the relevant paragraph of the IAA Decision is paragraph [24].
The jurisdictional error committed by the IAA in rejecting this claim by the Applicant is submitted by the Applicant to be making a finding that was ‘unreasonable, irrational and illogical’, given the other claims accepted by the IAA and in light of the information and evidence before it. In particular, the Applicant points to the Affidavit of his father (Father), affirmed 6 September 2013 (Father’s Affidavit), wherein the Father deposes:
3. On many occasions Sri Lankan security forces and the intelligent group came home in search of my son.[39]
[39] CB 194, [3].
Ground 1 further asserts that there was no basis for IAA’s assumption that the Father ‘would have noted’ the October 2012 incident in the Father’s Affidavit had it in fact occurred.
Counsel for the Applicant submitted that the fact that this contact by the Sri Lankan authorities was raised in such a brief affidavit nevertheless warranted it being treated as an extremely relevant point, that ought not to have been merely rejected by the IAA.[40] Further, the fact that the October 2012 incident was not mentioned by date was submitted not to reasonably support the IAA’s finding that it did not occur, particularly in circumstances where there were a number of incidents that were not raised in the Father’s Affidavit.[41]
[40] Transcript P14:L1-6; P15:L11-15.
[41] Transcript P16:L38-42.
The Minister’s Submissions at [38] cite Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]-[26] and submit that the IAA is not required to make a finding on every material claim made by the Applicant, and that any weight afforded to claims is a matter for the IAA. Counsel for the Minister reiterated this submission at the Hearing.[42]
[42] Transcript P31:L21-P32:L30.
However, the Minister submitted that the IAA did in fact take into account the Father’s Affidavit at paragraph [20] of the IAA Decision.[43]
[43] Minister’s Submissions, [39]; Transcript P34:L46-P35:L4.
Further, the Minister’s Submissions at [42] submitted that it was ‘reasonably open to’ and ‘within the area of “decisional freedom” afforded’ the IAA to make an adverse finding with respect to the Applicant’s claim, as to the events in October 2012. This was so because the Father’s Affidavit was brief in nature and on its face appeared to recount events sequentially, omitting any mention of an incident in October 2012.[44] In support of this submission the Minister relied upon Minister for Immigration and Citizenship v Li [2013] HCA 18 at [28] and [88].
[44] Minister’s Submissions, [40]-[42].
I agree with the submissions of the Minister and note that it is evident from the IAA Decision that the Father’s Affidavit was taken into account in considering the Applicant’s protection claims. The Father’s Affidavit was very brief and provided little detail or information about the frequency or timeline of visits to the Applicant’s family home by the authorities. Therefore, it was reasonably open to the IAA to decide as it did, not to accept that an incident in October 2012 in fact occurred.
The IAA finding in this respect cannot therefore be said to have given rise to jurisdictional error for unreasonableness, irrationality or illogicality, as it was not one that could not be reasonably arrived at on the basis of the material before it.
No jurisdictional error can be found in Ground 1. Ground 1 is therefore dismissed.
Ground 2
Ground 2 contends that the IAA made a jurisdictional error in its finding that the Applicant has not been of interest to Sri Lankan authorities since his departure from the country in September 2012. The findings of the IAA and the information and evidence before it were again relied upon by the Applicant as support for this contention, as they were for Ground 1.
The Minister submits that Ground 2 ought to be dismissed for the same reasons as Ground 1, referring to the fact that it was reasonably open to the IAA to make the findings that it did.[45] Further, Counsel for the Minister submitted that the finding by the IAA that the Applicant was not of interest to Sri Lankan authorities after his departure was made on ‘several independent bases’ from its finding as to the October 2012 incident, and therefore one (1) finding being unreasonable does not follow for the other.[46]
[45] Minister’s Submissions, [44] and [45].
[46] Transcript P36:L23-31.
The Court notes that the particulars in the Amended Application seem to indicate that the IAA Decision is affected by unreasonableness due to the conflict between the positive and negative findings made within it. For example, the Applicant asserts that the IAA had accepted a number of claims in relation to being taken, beaten and required to report to authorities, however it then rejected the Applicant’s claim that he was of interest to Sri Lankan authorities. I do not consider that such findings made in the IAA Decision are mutually exclusive and note that it was open to the IAA to find as it did on the material available, including country information and the evidence given by the Applicant himself that he had travelled to the United Arab Emirates in 2007 and returned to Sri Lanka in 2009 without event.[47]
[47] Minister’s Submissions, [23] and [27].
No jurisdictional error can be found in Ground 2. Ground 2 is therefore dismissed.
Ground 3
Ground 3 contends that the IAA erred in stating that no evidence had been provided regarding the Applicant’s brother’s capacity to work. Ground 3 refers to paragraph [29] of the IAA Decision and a letter from ‘Sai Baba Mediclinic’ in respect of his brother’s condition as at October 2001.
The Minister’s submissions put into context the relevance of the IAA’s findings in relation to the Applicant’s brother as follows:
48.[…] during the review an issue arose as to why the applicant’s brother had not been targeted by the CID after the applicant left Sri Lanka, when the applicant claimed that his family was being targeted. The applicant claimed that his brother was physically disabled from a shoulder injury and was not targeted by the CID because he was not a physical threat.[48]
[48] Minister’s Submissions, [48]; CB 174.
As submitted by the Minister, the IAA considered the Applicant’s claim regarding his brother’s injury, having regard to the letter from the ‘Sai Baba Mediclinic’, dated 21 October 2001, and ultimately found that there was no evidence that he would be shielded from the authorities by virtue of his injury or that this injury was ongoing.[49]
[49] Minister’s Submissions, [49]; CB 312, [28]; Transcript P40:L23-30.
Further, the IAA Decision found there to be no supporting evidence for the Applicant’s claim that, if he was to return to Sri Lanka, he would not receive support from his brother as his brother had no capacity to work.[50] Such a finding was open to the IAA to make in the absence of any updated medical material in relation to the Applicant’s brother, and indeed having regard to the ‘Sai Baba Mediclinic’ letter, which indicates that the Applicant’s brother should avoid physical activity until ‘full recovery’.[51]
[50] CB 312, [29].
[51] CB 195.
The Minister made submissions in accordance with the Court’s consideration in the previous paragraph, noting that it was reasonable for the IAA to find that the letter ‘was not evidence that the brother had an ongoing disability or that he was unable to work years later.[52] The Minister also submitted that any error by the IAA in this respect would nevertheless be immaterial, given the IAA’s finding that if the Applicant returned to Sri Lanka, the Applicant would be able to find work and support himself and therefore not rely upon his brother for assistance.[53]
[52] Minister’s Submissions, [52]; Transcript P40:L40-42.
[53] Minister’s Submissions, [53]; CB 312, [29]; Transcript P41:L27-33; L43-44.
I agree with the submissions of the Minister with respect to Ground 3.
No jurisdictional error can be found in Ground 3. Ground 3 is therefore dismissed.
Ground 4
Ground 4 asserts that the IAA’s rejection of the Applicant’s claim that the Father’s injury from a land mine was evidence of his family being deliberately targeted by authorities, failed to take into account relevant information and was ultimately unreasonable. The particulars of Ground 4 refer to paragraph [25] of the IAA Decision and previous claims made by the Applicant in his Statutory Declaration, dated 20 September 2016 (Statutory Declaration),[54] as to the location of the land mine and the Father’s work movements and habits.
[54] CB 170-176.
Notably, the Applicant asserts that the positioning of the land mine is ‘significant’ but was not referred to in the IAA Decision.[55]
[55] Amended Application, filed by the Applicant on 11 June 2021, Ground 4(d).
The Minister’s Submissions noted that the positioning of the land mine was raised by the Applicant in response to adverse findings of the Delegate, the incident initially having been framed in general terms: ‘my father on his way to work stepped on a landmine…’.[56] In the Statutory Declaration, the Applicant states inter alia that his father was employed as a gardener and had been working in an area previously cleared of land mines.[57] Thereafter, in the Statement, the Applicant expanded upon his claim regarding the landmine, stating that it had exploded at the gate entrance, and that his Father had attended the same place of work two (2) days before the explosion.[58]
[56] Minister’s Submissions, [55]; CB 72.
[57] CB 174, [34].
[58] CB 295.
The Minister’s Submissions submit that Ground 4 should be rejected for the following reasons:
(a)The IAA was not required to refer to every detail or ‘aspect’ of the Applicant’s claims or supporting evidence and its failure to refer specifically to the positioning of the landmine is insufficient to infer that it was not considered, particularly where this detail is ‘subsumed in the overall rejection of the claim’;[59] and
(b)It would not have been unreasonable for the IAA to reject the Applicant’s claim insofar as it related to the land mine’s positioning.[60]
[59] Minister’s Submissions, [59].
[60] Minister’s Submissions, [60]-[62].
I agree with the submissions of the Minister. It is apparent from the IAA Decision that reference was made to the relevant evidence and material with respect to the land mine incident, and although the IAA accepted that the Father was injured from such an incident, it ultimately found, as it was entitled and as was reasonably open to it, that the incident was not connected to the Applicant. Having considered the Applicant not to be of interest to the Sri Lankan authorities or the subject of ongoing investigation, including of his family members in Sri Lanka, it is entirely logical that the IAA did not consider the Applicant’s claim with respect to the Father being targeted to be credible.
No jurisdictional error can be found in Ground 4. Ground 4 is therefore dismissed.
CONCLUSION
The Amended Application has not identified any jurisdictional error within the IAA Decision and is therefore to be dismissed.
At the Hearing, the Minister sought costs in the scale amount pursuant to item 3, Division 1, Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).[61] Accordingly, the Applicant is to pay the Minister’s costs fixed in the sum of $8,371.30.
[61] Transcript P49:L22-27.
Orders will be made accordingly.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C. E. Kirton KC. Associate:
Dated: 19 October 2023
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