DEE16 v Minister for Immigration
[2019] FCCA 2966
•17 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEE16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2966 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority erred in interpreting or applying the law, or failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction – whether the Authority failed to have regard to relevant considerations – whether the Authority fell into jurisdictional error in that it was unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 473DD |
| Cases cited: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 DGZ16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 12 DPI17 v Minister for Home Affairs (2019) 366 ALR 665 |
| Applicant: | DEE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2307 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 20 June 2019 |
| Date of last submission: | 20 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2019 |
REPRESENTATION
| Counsel for the applicant: | Anthony Krohn |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the first respondent: | John Maloney |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application filed on 25 October 2016 and amended on 27 May 2019 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2307 of 2016
| DEE16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s claims
The applicant’s claims are summarised in paragraph 9 of his written submissions filed on 27 May 2019 as follows:
The applicant’s reasons for seeking protection including (sic) the following claims:
a)The Applicant is a man in his twenties, a non-citizen of Australia, and a national of Sri Lanka and of no other country. (CB 54)
b)He has no right to enter and to reside in any other country. (CB 54)
c)The Applicant is of Tamil ethnicity. (CB 56)
d)The applicant is a Hindu. (CB 56)
e)The core of the Applicant’s claims was that because of his race, his birth and growing up in an area formerly under LTTE control, and because of his brother who had been an LTTE fighter, detained, tortured, permanently injured, rehabilitated, but subject to continuing monitoring and reporting, he was at risk himself as [being] suspect[ed] of LTTE involvement.(CB 30, 102-105)
f)The Applicant claimed to have been questioned and beaten by the authorities about the LTTE, both during his time in a Sri Lankan Army camp at the end of the war, and also since then in the course of harassment, pressure, checking and physical harm. (CB 103)
g)The Applicant has departed Sri Lanka illegally and made a claim for asylum in Australia. (CB 104)
h)The applicant feared serious harm, including arrest, torture and being killed if he returns to Sri Lanka.(CB 104, [15])
The Authority’s reasons
The Authority’s reasons for decision are summarised in paragraphs 10 to 13 of the first respondent’s written submissions filed on 7 June 2019 as follows:
10.The Authority acknowledged the Applicant's claim that, due to his brother's involvement with the LTTE, he may be harmed on return to Sri Lanka (CB 243 [13]). It accepted that the Applicant's brother had been forcibly recruited by the LTTE, and that he was captured after being wounded, detained in May 2009 for 20 months, subject to torture and rehabilitation and released in 2010, and suffered lasting injuries (CB 243 [14]). It accepted that the Applicant's brother lived with his family in [place X] and was subject to ongoing monitoring and reporting obligations (CB 243-4 [15]).
11.Having regard to country information and the Applicant's evidence, the Authority concluded that the release of the Applicant's brother after 20 months suggested he was not an important or 'hard core' LTTE member (CB 244 [16]). It acknowledged that in certain circumstances, family members of LTTE members may face a heightened prospect of harm. However, it noted that the Applicant's brother had been apprehended by Sri Lankan authorities in 2009, rehabilitated and released. Although he was subject to ongoing reporting obligations, the Applicant had not claimed 'that his brother has not reported to the authorities as required', and there was no information before the Authority 'to indicate that [the Applicant's brother] has become involved in any pro-LTTE activities or done anything to attract further adverse attention or suspicion from the Sri Lankan authorities since his release from rehabilitation' (CB 244-5 [171). Further, although the Applicant had been questioned in the army camp, his claim was that this treatment was part of a general practice by the Sri Lankan military, not that it arose from his association with his brother (CB 245 [18]). Accordingly, the Authority was not satisfied that the Applicant faced a real chance of harm on return to Sri Lanka because his brother was a former LTTE member (CB 245 [19]).
12.The Authority went on to consider whether the Applicant faced harm as a young Tamil male from a former LTTE-controlled area. In short, it accepted that the Applicant's family was registered with authorities when they returned to [place X], and that returning displaced persons were at that time perceived as LTTE sympathisers and subject to monitoring for this reason (CB 247 [27]). However, having regard to country information and the Applicant's account of events, the Authority did not accept the Applicant's claims to have been questioned, harassed and physically harmed after returning to [place X] from the army camp. In reaching that view, it placed particular weight on the fact that the Applicant claimed to have been questioned only twice by the authorities whilst in the army camp before being permitted to return to [place X], which suggested the authorities had no ongoing adverse interest in him; that he had not claimed that his brother, a former LTTE member, had been interrogated and physically harmed after his release from rehabilitation; and that he was apparently able to travel through Sri Lanka in order to leave in 2012 (CB 247-8 [29]-[30]). Noting improvements for Tamils in former LTTE-controlled areas since the end of the civil war, and given its conclusion that the Applicant was not of interest to the authorities when he left Sri Lanka, the Authority was not satisfied that the Applicant faced a real chance of harm from the Sri Lankan authorities because he was a young Tamil male from a former LTTE-controlled area.
13.The Authority further did not accept that the Applicant faced a real chance or risk of harm as an illegal emigrant from Sri Lanka who was returning from Australia as a failed asylum seeker. In effect, it concluded that the Applicant being subject to ordinary procedures, including prosecution under the Immigrants and Emigrants Act, would not give rise to a real chance of harm, and that the Applicant would face no more than a brief period in detention while being subject to these processes (CB 252-5 [44]-[56]). In view of its anterior findings, and having regard to the need for actual, subjective intention to give rise to significant harm, the Authority concluded that the Applicant did not satisfy the complementary protection criteria (CB 255-7 [57]-[68]).
Ground 1
The first ground of review in the application filed on 25 October 2016 and amended on 27 May 2019 (“the application”) has two particulars, which I will consider in order.
Ground 1(a)
The first aspect of ground 1 of the application is:
The Second Respondent (“the Authority”) erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction.
Particulars
(a)Authority did not exercise its power under section 473DC of the Migration Act 1958 (“the Act”) to invite the Applicant to an interview or otherwise to get new information from the Applicant about his claims, when:
vthe credibility of the Applicant was critical to the Authority’s decision; and
vthe issue of the Applicant’s fear of harm because of imputed support for or involvement with the LTTE was central to his claim for protection; and
vthe Applicant had made his brother’s membership of the LTTE, detention, torture and continuing injuries an important part of his claim for protection; but
vthe Authority excluded the Applicant’s brother’s membership of the LTTE as a factor in any risk to the Applicant; (Authority’s Decision and Reasons, [18]-[19], Court Book (“CB”) 245; and
vthe exclusion of the applicant’s brother’s membership of the LTTE for the applicant’s own chance of suffering harm was critical to the Authority’s reasons and decision.
Section 473DC of the Migration Act 1958 (“the Act”) provided that:
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act provided that:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The Authority said at paragraphs 18 and 19 of its reasons for decision that:
18.In the submission to the delegate, it claimed that the fact that the applicant’s brother was involved with the LTTE for a prolonged period led the Sri Lankan authorities to believe the applicant belonged to a family that supported the LTTE and as such may have also been involved. However, I am not satisfied that the applicant was treated with any more suspicion of LTTE involvement as a result of his brother’s known involvement. He has not claimed that during questioning in the SLA camp, or after their release, that he was questioned about his brother’s involvement or accused of being involved with the LTTE because of his brother’s involvement. I consider that, had the authorities had a real suspicion, the applicant would have been questioned more than two times in the SLA camp and been detained for longer periods of time rather than a day each time. As he has claimed, all the boys were being similarly questioned about LTTE involvement whilst being held in the SLA camp. Country information before me also notes that during interrogation, at the end of the armed conflict, individuals who seemed uncooperative or were suspected to be lying were tortured in Vavuniya, and then transferred south for further interrogation by the CID or TID in Colombo.10 I note that the applicant has not claimed that this occurred to himself or his father. I am not satisfied the Sri Lankan authorities took an adverse interest in the applicant because his brother is a former LTTE member or that they have a current adverse interest in the applicant for this reason.
19.Whilst I accept that, in its most recent guidelines, the UNHCR has indicated that individuals with real or perceived links to the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case,11 I am not satisfied that the Sri Lankan authorities suspected the applicant of having any real links to the LTTE because of his brother’s involvement. Given that the applicant’s brother has remained at home, that he has not been involved in any activities since his release from rehabilitation that would attract further adverse attention and suspicion from the Sri Lankan authorities, the Sri Lankan authorities have not taken any additional adverse interest in him since his release, I am not satisfied the applicant faces a real chance of harm on return to Sri Lanka because his brother is a former LTTE member.
10 Amnesty International, "Locked away: Sri Lanka's security detainees", 1 March 2012, CIS22722, pp.16-17
11 UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, p.27
The applicant said in paragraphs 34 to 37 of his written submissions filed on 27 May 2019 that:
34.The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Applicant to an interview, or otherwise to get new information from the Applicant about his claims.
35.While acknowledging the tension between sections 473DB and 473DC, and that the Authority is not obliged to get new information simply because there is an issue of credibility, nevertheless in the present matter reasonableness required that the Authority exercise its power to get new information, specifically about the relation between the Applicant’s fear of harm and his brother’s profile as a known, detained, tortured, permanently injured and rehabilitated member of the LTTE.
36.This was required by the interaction and cumulative effect of the following specific factors:
❖ the credibility of the Applicant was critical to the Authority’s decision, and it refused to accept that he had been harassed and questioned after 2010, although the delegate had done so; (CB 248, [30]; CB 252, [43])
❖ the issue of the Applicant’s fear of harm because of imputed support for or involvement with the LTTE was central to his claim for protection; and
❖ the Applicant had made his brother’s membership of the LTTE, detention, torture and continuing injuries an important part of his claim for protection; (CB 103-104), but
❖ the Authority excluded the Applicant’s brother’s membership of the LTTE as a factor in any risk to the Applicant; (Authority’s Decision and Reasons, [18]-[19], CB 245); and
❖ the exclusion of the applicant’s brother’s membership of the LTTE for the applicant’s own chance of suffering harm was critical to the Authority’s reasons and decision.
37.The requirement of the Authority to invite the applicant to an interview under section 473DC(3) was further strengthened by the obligation of the Authority to find that if there was a real chance (which could be a quite small probability) of persecution or significant harm, the applicant was a person to whom Australia had an obligation to give protection. As the majority in Li said, “The legal standard of reasonableness must be indicated by the true construction of the statute.”12 The gravity of the Authority’s task, and the small probability of persecution or significant harm which is sufficient to engage Australia’s protection obligations under the Act, both indicated that a reasonable Authority would have exercised its power under section 473DD(3), to get further information about the Applicant’s claims at interview.
12 Ibid., [67] per Hayne, Kiefel and Bell JJ.
The Minister said in paragraphs 15 to 21 of his written submissions that:
15.By his first ground, the Applicant contends that the Authority did not exercise its power under s 473DC of the Act, and that it erred in applying the real chance test.
16.Turning first to the exercise of s 473DC: the exercise of that power, and the circumstances in which a failure to exercise it might give rise to unreasonableness, must be assessed by reference to the terms of this provision and Part 7AA of the Act. In short, Part 7AA provides for the Authority, in the ordinary course, to conduct its review without getting or considering new information from an applicant2. Section 473DC(2) expressly provides that the Authority does not have a duty to get, request or accept any new information, whether the Authority is requested to do so by a referred applicant or any other person, or in any other circumstances.
2 See, e.g., BVD17 v Minister for Immigration (2018) 261 FCR 35; [2018] FCAFC 114, [31]; see also s 473DB(1) of the Act.
17.Given that context, and the high threshold necessary to make out a ground of unreasonableness3 the circumstances in which the Authority may be found to have erred in its exercise of the discretion in s 473DC are confined.4 Moreover, the authority is obliged to review an application for itself and in doing so, it is entitled to follow a different path of reasoning, and arrive at different conclusions, from the Delegate, including as to the credibility of particular claims.5
3 See, e.g., DCP16 v Minister for Immigration [2019] FCAFC 91, [83]−[88], [110].
4 See, e.g., Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526.
5 See, e.g., DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12, [69]−[76].
18.Unsurprisingly, quite exceptional circumstances are required for the Authority, where its reasons do diverge from those of the Delegate, to thereby fall into illogicality or unreasonableness. For example, in DFW16 v Minister for Immigration [2018] FCA 746, the Authority's decision turned on perceived inconsistencies between the appellant's claims, and claims he had advanced in a discontinued application made two years earlier to which the Delegate's reasons made no reference. In DPI17 v Minister for Immigration [2019] FCAFC 43, the Authority's decision rested on perceived inconsistencies which the Delegate had expressly assured the Applicant were of little consequence; and the Applicant's demeanour (which, absent a hearing or interview, the Authority was unable to fully assess for itself) was central to the Delegate's credibility findings, from which the Authority departed.
19.No such circumstances arise in the present case. The Applicant acknowledges that the Authority was not obliged to get new information simply because the Applicant's credibility was in issue, but says that reasonableness nonetheless required the exercise of s 473DC to get new information about 'the relation between the Applicant's fear of harm and his brother's profile as a known, detained, tortured, permanently injured and rehabilitated member of the LTTE'.6 That is said to be so because:
6 Applicant's outline of submissions, [35].
19.1.The Applicant's credibility was critical to the Authority's decision, and it refused to accept that the Applicant had been harassed and questioned after 2010, 'although the delegate had done so';
19.2.The Applicant's fear of harm because of imputed support for or involvement with the LTTE was central to his protection claim;
19.3.The Applicant's brother's membership of the LTTE, detention, torture and injuries were important to the Applicant's protection claim;
19.4.The Authority 'excluded the Applicant's brother's membership of the LTTE as a factor in any risk to the Applicant'; and
19.5.That 'exclusion' was critical to the Authority's reasons and decision.
20.Respectfully, none of these matters give rise to an obligation on the Authority's part to get new information pursuant to s 473DC, nor render its decision not to do so unreasonable or illogical. Contrary to a. above, the Delegate had also expressed doubts about the Applicant's claims to have suffered harm after returning to Mallavi from the army camp, and the Authority's findings were consonant with those doubts (see CB 194 [601462]). That aside, as the foregoing summary makes clear, the Authority provided a clear basis for its findings as to the prospect of harm to the Applicant arising from his association with his brother. Those findings were logically open and unexceptionable. It may be accepted that the Applicant's claims arising from his brother's involvement with the LTTE were an important aspect of his overall claims and of the Authority's reasons, however it does not follow that the Authority was required to exercise its discretion to get new information from the Applicant.
21.The Applicant further contends that the Authority's reasons evince a misunderstanding of the 'real chance' test.7 In effect, the Applicant appears to criticise the Authority's conclusion that the Applicant's association with his brother did not give rise to a real chance of harm, on the basis that the Authority had elsewhere accepted that torture was used against certain people suspected of LTTE links. The Applicant also appears to criticise the Authority's finding that the Applicant was not harmed as claimed after returning to Mallavi in 2010. Again, the summary of the Authority's reasons in the preceding section makes clear that its findings on these matters were logically open. With respect, this aspect of the ground effectively amounts to a criticism of the merits of the Authority's decision.8
7 Ibid [39]−[42].
8 See, e.g., DCP16 v Minister for Immigration [2019] FCAFC 91, [831488]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, [40]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, [78].
As can be seen, the Minister took issue with the applicant’s claim that the delegate had accepted that the applicant had been questioned after 2010. At the hearing before this court, the applicant accepted that there was support for the Minister’s position in paragraph 62 of the delegate’s reasons for decision, where the delegate said:
… In summary, while I accept that the applicant was screened at the IDP camp, and that this included authorities (moderately) harming the applicant, I do not accept that the applicant was subject to physical harm once released from the displaced persons camp, or that he was questioned on several further occasions.
However, the applicant argued that, in paragraph 65 of his reasons for decision, the delegate took a different view, saying:
Additionally, as I have accepted that the applicant was in fact questioned by authorities in the 2010-2012 period while living in [place X], it therefore follows that the authorities were aware of the applicant’s whereabouts and could access him at any time, negating any need to ‘pursue’ him…
The applicant also noted paragraph 109 of the delegate’s reasons for decision, where he said:
… That he was not subjected to [arrest, detention or rehabilitation], despite being questioned by the authorities on several occasions, indicates that after preliminary questioning by the authorities, he was not considered to be a security risk or of any particular interest to authorities …
There is an inconsistency in the delegate’s reasoning. However, the overarching point made clear in paragraphs 63 and 64 of his reasons is that the applicant’s claim was that, after being released from the internally displaced persons’ camp, he was subjected to what amounted to routine questioning, which many Tamils experienced. The delegate emphasised that those who were of concern to the authorities were not questioned and released, but questioned and detained.
In any event, the Minister said that the significant issue was that the delegate reached the same conclusion as the Authority in relation to the applicant’s brother, being that the applicant did not face a real chance of harm because of that family connection. I accept that contention.
As is well established, in the ordinary course, it is entirely lawful for the Authority to conduct its review on the papers and without inviting the applicant to an interview. That is so, even if the Authority takes a different view of the material.
For example, the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 12 said that:
[69]In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point.
[70]It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).
[71]In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant’s claims largely because of the delegate’s finding that there was no CTS office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant’s claims to have been a CTS informant. The delegate referred to “the significant credibility issues surrounding the applicant’s claim to have been a ‘secret agent’ for the CTS”. But the delegate also tested the plausibility of the appellant’s claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out.
[72]In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[73]We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.
[74]We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.
[75]There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[76]It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
On the other hand, it was held that it was necessary for the Authority to consider inviting an applicant to an interview in DPI17 v Minister for Home Affairs (2019) 366 ALR 665; [2019] FCAFC 43, where the Full Court of the Federal Court said at [46] that:
As to the sexual assaults:
(1)It would have been evident to the IAA from the extracts from the transcript of the appellant’s interview with the delegate (see [14] above) that the delegate’s acceptance of the appellant’s claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when this matter was discussed in the course of the interview with the delegate.
(2)The IAA must have been aware of the delegate’s positive assessment of the appellant’s demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.
(3)In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.
(4)As the plurality observed in Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [30]–[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA’s reasons for its adverse finding on the appellant’s credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant’s evidence, as set out by the IAA in [22] to [34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA’s decision record were viewed as undermining the appellant’s credibility. That adverse finding then flowed through to the IAA’s rejection in [36] of its decision record of the appellant’s claims to have been the victim of sexual assault.
(5)For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.
Another case in which it was held that the Authority should have considered whether to invite the applicant to an interview was DFW16 v Minister for Immigration and Border Protection [2018] FCA 746. In that case, Barker J said that:
[61]It is then relevant to note that the delegate, in making the refusal decision on the 2015 SHEV application, made absolutely no reference to the 2013 protection application, even after conducting an interview with the appellant. There was then nothing obvious, by the way of a signal to the appellant, from the terms of the delegate’s decision that the appellant should make submissions or seek to give new information to the Authority about apparent inconsistencies in the two applications for the purpose of the Authority’s consideration of the delegate’s decision.
[62] Indeed, in circumstances where there had been a gap of more than two years between the making of the 2013 protection application and the receipt of the 8 September 2015 letter from the Department inviting the SHEV application; the making of the SHEV application some two months later in November 2015, which in its terms did not make any reference to the protection application; the decision of the delegate making no reference to the 2013 protection application or the grounds advanced in support of it; and the ambiguities as to the status of the 2013 application arising from the 8 September 2015 Departmental letter advising of the invalidity of the 2013 application, and returning the copy of it with advice that it would not “be processed any further”; all should have caused the Authority at least to consider whether it should invite the appellant to comment on the apparent inconsistencies it had identified as arising out of the two applications in its own decision-making process.
There is nothing in the present matter that takes it outside the usual run of cases where it is unnecessary for the Authority to invite the applicant to an interview or otherwise get new information from the applicant about his claims. Consequently, the fact that the Authority did not invite the applicant to an interview or otherwise get new information from him is not indicative of an error in interpreting or applying the law, or failing to exercise jurisdiction or erring in the exercise of its jurisdiction. The first aspect of ground 1 is not made out.
Ground 1(b)
The second aspect of ground 1 of the application is:
The Second Respondent (“the Authority”) erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction.
Particulars
…
(b)The Authority erred in interpreting or applying the term “real chance” under section 5H of the Act, in finding that it was “not satisfied that there is a real chance the Sri Lankan authorities will take an adverse interest in the applicant on return to Sri Lanka for any reason” (Decision and Reasons [48], CB 253), and “not satisfied that he will be of adverse interest on return for any reason” (Decision and Reasons [53], CB 254 – 255).
In support of this aspect of ground 1, the applicant said in his written submissions at paragraphs 39 to 42 that:
39.The Authority erred in interpreting or applying the term “real chance” under section 5H of the Act, in finding that it was “not satisfied that there is a real chance the Sri Lankan authorities will take an adverse interest in the applicant on return to Sri Lanka for any reason” (Decision and Reasons [48], CB 253), and “not satisfied that he will be of adverse interest on return for any reason” (Decision and Reasons [53], CB 254-255).
40.This follows from the Authority’s acceptance of “the prevalence of torture by the Sri Lankan authorities and that torture has been, and is, used against people suspected of being linked to the LTTE.... I have not, however, accepted that the Applicant was of any adverse interest ...as someone with suspected direct links to the LTTE or because his brother was a former member of the LTTE, at the time he fled Sri Lanka or that he will be of adverse interest on return.” (CB 250, [38])
41.The Authority’s rejection of the critical claim that the Applicant was and may be of interest was based on its rejection of the Applicant’s claim to have suffered harassment, pressure and physical harm after August 2010, which in turn was based on its rejection as a plausible possibility that the Applicant suffered these things while his badly injured brother was subject only to monitoring, signing in and being checked at home. (CB 243-244 [14]-[15]; CB 247-248, [30])
42.The unsupported assumptions on which these rejections of claims are based necessarily imports into the findings of the Authority a wrong understanding or application of the term “real chance” of harm. Unsupported assumptions, and a failure to consider that a known, rehabilitated but gravely injured LTTE member might be subject only to monitoring, while his brother might be harassed and physically harmed, demonstrate that the Authority did not understand that a “real chance” of harm might be very small.
The Minister said in his written submissions that the applicant was seeking merits review with this argument.
The Authority dealt with the claims about the applicant’s brother at some length. In addition to paragraphs 18 and 19 of its reasons for decision, which are set out above, the Authority said in relation to this issue:
13.The applicant claims that, due to the fact that his brother was involved in the LTTE, there is a real risk he will be subjected to torture on return to Sri Lanka.
14.The applicant claims that his brother was forcibly recruited to the LTTE in late 2007 but was later captured after being wounded in May 2009. He was then held in a military prison for approximately 20 months where he was tortured and underwent rehabilitation and subsequently released in 2010. Many of his injuries from the war were not treated and he still has issues and heavy scarring and is in constant pain. The applicant has provided two documents in relation to his brother’s detention, one of which is letter issued by the Commissioner General of Rehabilitation which indicates that his brother was “reintegrated” on 11 November 2010. On the basis of the applicant’s consistent evidence, documentary evidence and corroborating country information,[1] I accept the above claims.
15.The applicant claims that, upon release, his brother was not allowed to leave [place X] and the Sri Lankan authorities continued to monitor him. During the protection visa interview the applicant claimed that his brother still lives with his family and is still under close watch and has to sign in every week and the Sri Lankan authorities come and check on him regularly. I accept his claims in this regard and have given weight to corroborating country information which indicates that rehabilitees are visited by military and intelligence agents or are required to report regularly.[2]
16.In the written submission to the delegate, the applicant’s representative claimed that, the fact that the applicant’s brother was subject to severe mistreatment whilst detained after his capture, is indicative of the fact that the Sri Lankan authorities genuinely believed that he had a “strong involvement” with the LTTE. It is unclear what the applicant’s representative meant by “strong involvement”. Country information before me indicates that, at the end of the armed conflict, those who admitted links to the LTTE, and who did not appear to investigators to be “hard core” or important LTTE leaders, were detained for “rehabilitation”. Individuals who seemed uncooperative or were suspected to be lying were tortured in Vavuniya, and then transferred south for further interrogation by the CID or TID in Colombo.[3] Those with low-level involvement were released and received community reintegration.[4] The applicant has provided a document indicating that his brother was “reintegrated” in November 2010 after being held for approximately 20 months. For these reasons I am satisfied that the applicant’s brother was not considered a “hard core” LTTE member or an important LTTE leader of the LTTE but was considered to have had a low-level of involvement.
17.In the submission to the delegate the applicant’s representative contended that country information indicates that family members of LTTE members are at risk of harm.[5] I accept that, in its current guidelines, the United Nations High Commissioner for Refugees (UNHCR) has identified family members of former LTTE combatants as one of the risk profiles.[6] However, the UNHCR further elaborates that, should a rehabilitee fail to report to the military authorities on a regular basis, family members are directly questioned by the military on their whereabouts and family members of former LTTE fighters who did not surrender continue to face interrogation by the authorities.[7] In 2014, Amnesty International also referred to continued reports of the systematic abuse of former LTTE members who failed to surrender to the authorities, or people suspected of unacknowledged LTTE links, and abuse of their families by members of the security forces.[8] In December 2015, DFAT also assessed that close relatives of LTTE members, particularly high-profile members, who are wanted by Sri Lankan authorities, are likely to be subject to monitoring.[9] The above country information indicates that there is a real chance that the families of suspected former LTTE members who have not surrendered, or are yet to be caught, are at risk of monitoring and interrogation and abuse. The same can be said for families of rehabilitees who fail to report as required. However, I note that the applicant’s brother was caught by the SLA in 2009 and has already undergone rehabilitation and has been released. His brother continues to live in his family home and the applicant has not claimed that his brother has not reported to the authorities as required. There is no information before me to indicate that he has become involved in any pro-LTTE activities or done anything to attract further adverse attention or suspicion from the Sri Lankan authorities since his release from rehabilitation. I am not satisfied that the Sri Lankan authorities have taken any additional adverse interest in the applicant’s brother since his release from rehabilitation.
[1] United Nations High Commissioner for Refugees (UNHCR), “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, p. 11; Amnesty International, "Locked away: Sri Lanka's security detainees", 1 March 2012, CIS22722; Tamil net, “IOM blamed for double standards”, 1 September 2012, CIS25923.
[2] United States Department of State (US Department of State), “Country Reports on Human Rights Practices – Sri Lanka”, 25 June 2015, OG2B06FAF8, p.20; UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, pp.27-28
[3] Amnesty International, "Locked away: Sri Lanka's security detainees", 1 March 2012, CIS22722, pp.16-17.
[4] United Kingdom Home Office (UK Home Office), "Sri Lanka: Country of Origin Information (COI) Report", 7 March 2012, CIS29709, p.33
[5] UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, p.27
[6] Ibid.
[7] Ibid, p.28
[8] Immigration and Refugee Board of Canada (IRB), “Treatment of suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE), including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (2011-January 2015)”, 11 February 2015, OGFDFC61A5, p.3
[9] Australian Department of Foreign Affairs and Trade (DFAT), “DFAT Country Report: Sri Lanka”, 18 December 2015, CISEC96CF14143, p.15
I do not consider that the Authority’s reasoning on this issue is indicative of a misapprehension of the real chance test. The Authority’s reasoning was open to it. The Authority explained why the circumstances of the applicant’s brother did not lead to the application having a well-founded fear of persecution. In this ground, the applicant is essentially seeking merits review. The second aspect of ground 1 is not made out.
Ground 2
The second ground of review in the application is:
The Authority failed to have regard to relevant considerations including relevant information.
Particulars
(a)In Authority excluded the Applicant’s brother’s membership of the LTTE as a factor in the Authority’s assessment of any risk of harm to the Applicant, but the Applicant’s brother’s membership of the LTTE was part of the Applicant’s overarching reason for fearing harm. (Authority’s Decision and Reasons, [18]-[19], Court Book (“CB”) 245; Applicant’s statement [5]-[14], CB 102-104) (errors in original)
The applicant said about this ground in his written submissions that:
43.The Authority gives a procedurally limited form of review. Nevertheless, the Authority, like other administrative decisionmakers, especially those engaged with claims for protection, must consider each necessary and relevant consideration13 and an integer of the claim.14 It must consider a material question of fact, squarely raised by the material before the Authority.15 Failure to do so is a failure to discharge the Authority’s jurisdiction.
44.A failure to have regard to information before the Authority is also a jurisdictional error, because of the importance of that information. Information before the Authority is important because of the Authority’s task under the Act, which is to review the decision of the Minister’s delegate on the basis of the material given to it under section 473CB, and which must include the material before the delegate and to which the delegate was obliged to have regard under sections 54, 55 and 56 of the Act. The Authority itself also has the power to seek information (section 473DC) and an obligation to give particulars of information (section 473DE) and so its discharge of its jurisdiction must include the task of having regard to the information before it. An error about this information or a failure to have regard to it therefore can be an error of law, and is a sign of jurisdictional error.16
45.The Authority is obliged to give in writing not only its decision and reasons, but its findings on material questions of fact and references to the evidence on which those findings were based.17 The Court can infer from the Authority’s statement of reasons that if an issue is not mentioned it has not been considered.18
13 See e.g. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (31 July 1986) per Mason J, at [15] of his Honour’s judgement.
14 See SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 (5 June 2015), per Perry J. at [13]-[18[. See also SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 (30 April 2003). [29] per Madgwick and Conti JJ.
15Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95]).
16Applicant M190 of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 [10]-[13] per Finkelstein J.
17Acts Interpretation Act 1901, section 25D
18Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105 (31 May 2001) at [5] per Gleeson CJ, and see also [69] and [75] per McHugh, Gummow and Hayne JJ.
The Minister said about this ground in his written submissions that:
22.By his second ground, the Applicant contends that the Authority failed to consider a relevant consideration, or relevant information or an integer of a claim, in that it 'excluded the Applicant's brother's membership of the LTTE as a factor in [its] assessment of any risk of harm to the Applicant' on an unduly narrow basis: namely, that the Applicant had 'not claimed that... he was questioned about his brother's involvement [in the LTTE] or accused of being involved with the LTTE because of his brother's involvement'.9
23.This ground is gainsaid by an appraisal of the Authority's relevant reasons. At CB 243 [13], the Authority acknowledges the Applicant's claim that he may face harm because of his brother's past involvement with the LTTE. It then recounts, and accepts, the Applicant's claims about that past involvement: CB 243−4 [14]−[15]. At CB 244−5 [16]−[17]. The Authority concludes that the treatment of the Applicant's brother indicates that he was not regarded by the authorities as a senior or 'hard core' LTTE member; and, importantly, that although family members of former LTTE members may face harm, country information tended to indicate that harms to family members arose when former LTTE members remained at large, or failed to report to the authorities. In the Applicant's case, his brother had been apprehended and rehabilitated by the authorities. Evidently, he was complying with their ongoing monitoring requirements, and had not renewed his LTTE activities or 'done anything to attract further adverse attention or suspicion from the Sri Lankan authorities' (CB 244−5 [17]). In short, his circumstances were not such as might give rise to a real chance of harm to his family, despite his past involvement with the LTTE.
24.The Authority then considers the Applicant's own claims to have been questioned and mistreated because of a suspected affiliation with the LTTE (CB 245 [18]). It concludes, in essence, that the Applicant claimed he was questioned along with many others at the army camp, rather than because of his relationship with his brother; and that he was questioned twice and not taken elsewhere for further interrogation, which was inconsistent with the authorities having any real suspicion that he was an LTTE affiliate.
9 Applicant's outline of submissions, [46].
It seems to me that this ground is a simple application for merits review. The Authority patently considered the matters raised. It rejected the construction that the applicant placed upon the basic facts. This ground is without substance.
Ground 3
The third ground of review in the application has three particulars, which I will consider in order.
Ground 3(a)
The first aspect of ground 3 of the application is:
The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
(a)The Applicant refers to and repeats the Particulars to the other Grounds of this application.
In relation to unreasonableness generally, the applicant said in his written submissions, uncontroversially, that:
Reasonableness as a condition of the Authority’s exercise of power
28.The High Court has considered Part 7AA of the Act. In Plaintiff M174/2016 v Minister for Immigration and Border Protection5, Gaegeler, Keane and Nettle JJ. said at [21]:
21.There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li6, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.7
5 The High Court’s footnote reference is: [2018] HCA 16 (18 April 2018)
6 The High Court’s footnote reference here is: (2013) 249 CLR 332; [2013] HCA 18.
7 Gordon J. agreeing on this point at [86], and Edelman J. at [97].
(Emphasis added)
29.The Authority is obliged to act rationally and according to logically probative evidence.
30.The Authority falls into jurisdictional error if it makes findings which are illogical in the sense of being unsupported by any probative evidence.8 It also falls into jurisdictional error if it acts so unreasonably that no reasonable decision maker could so have acted.9
31.This principle is reinforced in the case of the Authority in the present matter, given its obligation under section 473EA of the Act to give a written statement which sets out the Authority’s reasons.
32.The obligation of the Authority to act reasonably is general. It also extends in particular to its exercise of discretions it has under the law. (Minister for Immigration and Citizenship v Li10)
33.Whether reasonableness requires the Authority to exercise its powers under section 473DC is dependent on the particular facts of each individual case.11
8 See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (26 May 2010), [16]-[31],
[32]-[40] per Gummow ACJ and Kiefel J; [119]-[120] [124]-[133] per Crennan and Bell JJ.
9Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
10Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332
11DGZ16 v. Minister for Immigration and Border Protection [2018] FCAFC 12, [70] per Reeves,
In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91, the Full Court of the Federal Court said that:
83.First, the use of expressions such as “illogicality” or “irrationality” may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J). But that does not in and of itself establish jurisdictional error.
84.Second and relatedly, the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the Authority’s conclusion into the category of jurisdictional error, but that is to descend into impermissible merits review.
85.Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [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.
86.Moreover, at [135] their Honours continued:
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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.
87.Fourth, the weight that the Authority accorded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).
88.Fifth, some probative material or other logical basis for a fact finding by the Authority was sufficient. The Authority was not obliged to uncritically accept evidence or a submission made by the appellant.
The applicant did not advance any additional submissions in relation to the first aspect of this ground. The other grounds of the application do not indicate that the Authority fell into jurisdictional error by reason of being unreasonable. The error alleged in the first aspect of ground 3 is not made out.
Ground 3(b)
The second aspect of ground 3 of the application is:
The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
…
(b)The Authority was contradictory in its findings about the Applicant’s brother, namely:
vThat the Applicant’s “brother still lives with his family and is still under close watch and had to sign in every week and the Sri Lankan authorities come and check on him regularly” (Authority’s Decision and Reasons, [15], CB 243); and
vand “I am not satisfied that the Sri Lankan authorities have taken any additional adverse interest in the applicant’s brother since his release from rehabilitation.” (Authority’s Decision and Reasons, [17], CB 245)
At paragraphs 53 and 54 of his written submissions, the applicant said in relation to the second aspect of ground 3 that:
53.These findings are plainly contradictory. Being “under close watch and has to sign in every week and the Sri Lankan authorities come and check on him regularly” is precisely “additional adverse interest in the applicant’s brother since his release from rehabilitation.”
54.This is an important incoherent and unreasonable set of findings, precisely because the Authority’s view of the profile of the Applicant’s brother was a reason for the Authority’s assessment of risk to the Applicant, both in his claims of past and fear of future harm, as set out above in relation to Particular 2(a) above. It was therefore a material and jurisdictional error.
In relation to this point, the Minister said at paragraph 29 of his written submissions that:
As to the putative contradiction in the Authority's findings, this is easily resolved when the reasons are read fairly and as a whole. The Authority accepted that the Applicant's brother was subject to ongoing monitoring and reporting obligations following his release from detention. It also found that there was no claim before it that the Applicant's brother had failed to comply with these obligations, or had become involved in any pro−LTTE activities since his release, or had done anything else to attract further adverse attention or suspicion from the authorities. Accordingly, the authorities had not taken any additional adverse interest in him since his release from rehabilitation. Properly understood, there is no contradiction, nor even tension between these findings.
Paragraphs 15 and 17 of the Authority’s reasons for decision are set out above. I do not consider that there is a contradiction between the two findings identified by the applicant. The Authority accepted in paragraph 15 of its reasons for decision that the applicant’s brother was subject to ongoing monitoring. The Authority said in paragraph 17 of its reasons for decision that the applicant’s brother was not subject to any additional adverse interest (emphasis added). There was no contradiction. It follows that the Authority was not unreasonable on the basis alleged. The error alleged in the second aspect of ground 3 is not made out.
Ground 3(c)
The third aspect of ground 3 of the application is:
The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
…
(c)The Authority was unreasonable in excluding the Applicant’s brother’s membership of the LTTE as a factor in any risk to the Applicant; (Authority’s Decision and Reasons, [18]-[19],[30]; CB245,247-248)
In relation to this aspect of ground 3, the applicant said at paragraph 55 of his written submissions:
Particular 3(c) – exclusion of the Applicant’s brother’s profile as a risk to the Appliciant
55.For the reasons set out above in relation to Particulars 1(b) and 2(a), the Authority was unreasonable in excluding the Applicant’s brother’s membership of the LTTE as a factor in any risk to the Applicant; (Authority’s Decision and Reasons, [18]-[19], [30]; CB 245, 247-248)
For the reasons expressed above, I do not consider that the Authority was unreasonable in the manner in which it dealt with the applicant’s brother’s circumstances. The error alleged in the third aspect of ground 3 is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 17 October 2019
See also NABE v Minister for Immigration & Multicultural& Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
See also Paramananthan v. Minister for Immigration & Multicultural Affairs; Minister for Immigration & Multicultural Affairs v Vijayakumar Sivarasa [1998] FCA 1693 (21 December 1998)
Robertson and Rangiah JJ.; DPI17 v Minister for Home Affairs [2019] FCAFC 43 (15 March 2019),
[35]-[54] per Griffiths and Steward JJ. See also [78]-[122] per Mortimer J., who agreed in the
result.
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