DKP17 v Minister for Home Affairs

[2019] FCCA 596

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKP17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 596

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority made findings that were unreasonable, illogical and/or inconsistent – whether the findings made by the Authority were fabricated – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 476.

Applicant: DKP17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2679 of 2018

Judgment of: Judge Street

Hearing date: 11 March 2019

Date of Last Submission: 11 March 2019

Delivered at: Sydney

Delivered on: 11 March 2019

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: Simon Diab and Associates

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 11 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2679 of 2018

DKP17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 22 August 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claimed to fear harm by reason of his Tamil National Alliance (“TNA”) activities, including election campaigning, preparation of a list of missing persons, the abduction of his brother, fear of harm from paramilitary groups, the Criminal Investigation Division (“the CID”), army intelligence and by reason of being an illegal departee.

3. The delegate in his reasons summarised the relevant claims and identified the applicant alleged that on 12 September 2012 he received a summons from the Tamil Makkal Viduthalai Pulikal (“TMVP”) to attend their office with a list of missing persons. The delegate acknowledged that the applicant compiled a list of missing persons from his area and was threatened as a result, but did not accept the applicant being imputed as an LTTE supporter because he had photographs found by the army. The delegate did not accept the applicant was ever harmed by paramilitary groups or the army. The delegate did not accept the applicant was summoned to the TMVP to produce a list of missing persons.

4. On 3 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 8 November 2016, the delegate’s decision for review. The decision made by a differently constituted Authority from the decision the subject of these proceedings, was quashed on 12 June 2018 by order of this Court and remitted for review according to law under Part 7AA.

6. Following the decision of this Court, the applicant was informed on 5 July 2018 that the matter had been remitted to the Authority for review. Further information was provided to the Authority on 9 July 2018 which was expressly referred to in the Authority’s reasons.

7. The Authority identified the background to the visa application and had regard to the information given by the Secretary under s 473CB of the Act. The Authority identified taking into account an email with attached documents and held that the information provided was not new information as they were before the delegate and therefore could be considered. The Authority also identified taking into account other documents provided by the applicant which were not provided by the Department to the Authority and found that it was not new information and could be considered. The Authority also took into account an updated DFAT country information report of May 2018 as the Authority was satisfied there were exceptional circumstances to justify considering the information.

8. The Authority summarised the applicant’s claims. The Authority found the applicant is a Tamil Hindu of a particular district in Batticaloa. The Authority accepted the applicant’s father was taken away by the army in 1990 during the ethnic unrest and has not been seen since and is most likely deceased.

9. The Authority referred to the applicant’s claims concerning his brother, who he alleged had been involved in supporting the TNA. The applicant was identified by the Authority as consistently identifying he was involved in supporting the TNA, but found the applicant’s claims about his level of support had not been consistent. The Authority referred to the initial interviews where the applicant claimed he was not a member of the TNA, and also referred to the applicant’s statement where he then claimed that he was a life member of the party, having joined in May 2010.

10. The Authority found the applicant’s claims had developed over time in a number of key respects. The Authority referred to the screening interview in which the applicant made no claims that he produced a list of missing persons or that he assisted former LTTE rehabilitees in obtaining ID cards and work. The Authority noted that the applicant made no claims of prior harassment for his TNA support or being looked for in 2012, or that the TMVP tried to recruit him to their intelligence wing, or as an informant, or that his brother was abducted. The Authority noted that at the arrival interview the applicant did mention phone threats from May 2012, but that these were not mentioned after. The Authority noted that it was not until the 2016 statement by the applicant that he mentioned the LTTE connection, list of missing persons, informant recruitment and abduction of his brother claims.

11. The Authority referred to the applicant’s explanation for the omissions being that the interpreter had misunderstood and that he was told to keep his answers brief and to refer to events that occurred in the last three months. The Authority noted that whilst the applicant was told to keep his answers brief, he was also asked a series of questions in both interviews.

12. The Authority listened to the interviews which lasted nearly an hour and a half. The Authority found the applicant was given a number of opportunities in his arrival interview to add any other reasons for his departure from Sri Lanka. The Authority noted that at the end of the arrival interview the applicant added that army intelligence and an unknown group had visited his home since he came to Australia.

13. The Authority found the applicant did not make any claims about a list of missing persons or assisting former LTTE members. The Authority found the applicant did not mention the August 2012 events. The Authority did not accept that there was any interpretation problems that explained the difference in the evidence and the omissions by the applicant. The Authority found it was clear that the applicant understood what was said and had a proper opportunity to provide information. The Authority also noted that the applicant understood and responded in English at times.

14. The Authority referred to the applicant’s screening interview and that the applicant provided details about his TNA involvement when he said he was not a member of the TNA, but supported the TNA in elections. The Authority referred to the applicant being asked whether there were any reasons for him coming to Australia and that the applicant said “no”. It was in those circumstances that the Authority did not accept the applicant’s explanations and did not accept that there was any uncertainty or misunderstanding. The Authority found that the applicant had added to his claims over time. The Authority did not accept they were an elaboration or more detailed and found that they are new claims. The Authority found that they were key claims and did not accept that the applicant did not have an opportunity to raise them and found that if true, the applicant would have raised them.

15. The Authority also referred to the counselling letter from a social worker. The Authority then turned to the applicant’s claims that his brother was abducted, severely tortured and assaulted by the paramilitary in June 2010 for four days. The Authority referred to the applicant claiming that his brother fled to Canada. The Authority noted that in the arrival interview in January 2013, the applicant claimed his brother was living in Colombo working as a goldsmith. The Authority considered the applicant’s claims concerning the brother being a Canadian refugee claimant, which indicated the applicant’s brother had been in Canada since April 2011 as a refugee claimant.

16. The Authority was prepared to accept it may be, that the applicant’s brother had gone to Canada. The Authority however, found that if the applicant’s brother had been kidnapped and therefore fled to Canada, it is difficult to believe that the applicant would not have mentioned this if it was true. The Authority found that this would have been a significant event. The Authority found that even if the applicant was unsure about his brother’s whereabouts, the Authority did not accept the applicant would not have mentioned such a crucial kidnapping event if it had occurred.

17. The Authority found despite the second brother’s whereabouts and occupation, the applicant did not claim the brother had been abducted in his arrival interview and did not mention it at his screening interview either. The Authority found it difficult to believe that the applicant would not have mentioned this if true as it would have been a key event.

18. The Authority also noted that the applicant was asked a number of times, both at his arrival interview and in his screening interview, if there was anything else he wished to add. The Authority made reference to the applicant’s statement and protection interview where the applicant provided little detail about the claimed abduction and his limited account changed and lacked credibility. The Authority identified in that regard that the applicant initially claimed it was for extortion as they did not like the applicant working for the ITAK Group. The Authority noted the applicant then said the Karuna Group abducted his brother because they wanted more people to join them.

19. The Authority also made reference to the applicant’s account of when his brother departed Sri Lanka also changing. The Authority made reference to the initial claim that his brother left in April 2011 and that when the delegate put concerns about the length of time his brother remained in Sri Lanka after the planned abduction, the applicant changed his account to say his brother left in January and arrived in Canada in April. The Authority considered the change in account in response to questions from the delegate to be of concern.

20. The Authority referred to the applicant adding that his brother was in hiding at relatives’ homes in Colombo. The Authority made reference to having listened to the protection interview and found the applicant’s evidence unconvincing as he changed his evidence from him being with distant relatives to friends. The Authority referred to the applicant being asked details about the relatives and the applicant claimed he did not know them and that they were friends of his brother. The Authority noted the applicant then changed his account and said they were distant relatives, like friends. The Authority found that even if staying at relatives’ homes, the Authority considered that the brother would have been easily found. The Authority made reference to the brother remaining in Colombo between June 2010 and January, possibly April 2011, which does not indicate he fled in fear.

21. The Authority further found that it was not credible that the family paid only part of the release payment and would not afterwards suffer consequences.

22. The Authority accepted the brother may be in Canada and may have claimed protection. The Authority did not accept the brother was abducted and assaulted, or that he was in hiding, or that he fled Sri Lanka due to abduction. The Authority did not accept the brother is a refugee, as a document provided noted that he was only a claimant and did not state that his application had been granted.

23. The Authority referred to the applicant’s claims concerning the LTTE and did not accept the applicant assisted former LTTE members after rehabilitation to obtain ID cards or work. The Authority found the applicant added to this claim late to enhance his protection claims. The Authority referred to country information that indicates former LTTE members are able to obtain ID cards upon completion of rehabilitation and are employed. The Authority did not accept the applicant needed to or did assist rehabilitees to obtain ID cards or employment. The Authority did not accept the applicant had any problems in this regard.

24. Further, the Authority considered that the applicant had added new claims about photos and scouts and the LTTE at the interview for the protection visa. The Authority found the applicant gave a vague and uncertain account and found the applicant was making it up as he went along. The Authority did not accept the applicant’s photos of the applicant with the LTTE were taken or found. The Authority found the applicant had fabricated this claim. The Authority did not accept the applicant was or would be suspected of being involved with the LTTE.

25. The Authority referred to the missing persons list and the applicant’s claims that he compiled the list of missing persons at the request of a member of ITAK MPs. The Authority, for the reasons referred to above, considered the applicant had added this claim as he did not mention it in his two interviews in 2012 and 2013. The Authority found it difficult to believe that the applicant would not mention his compilation of a list of missing persons given it was a key part of his claims.

26. The Authority then provided four further reasons in support of the adverse findings in this regard. The Authority referred to the account given by the applicant at the interview about how he collected the information being vague and lacking detail. The Authority also referred to the applicant being evasive when asked about the lack of detail and referred to the problems with the applicant’s evidence and the absence of detail of where he went, how he collected or verified information, with whom he spoke, whether he spoke to village leaders or families.

27. The Authority also found the applicant’s account of the threats and visits made about the list lacking credibility. The Authority did not consider it credible that if the army groups or army wanted and demanded a list, that they would take so long to obtain it or that when they came to the home of the applicant they would accept his response that he did not have the list with him. The Authority also found the applicant’s account of how he still had the original list lacked credibility. The Authority also referred to the applicant saying he had kept a copy and then at the interview stating that he still had the original list at home. The Authority found this at odds with the applicant’s claims they had searched the home and took all his papers and laptop.

28. The Authority referred also to the list being oddly prepared as it was in English and provided no information about when the persons went missing, when they were reported missing or the circumstances. The Authority referred to the list being typed names and addresses with a handwritten notation at the top.

29. The Authority also referred to it being odd that four of the MPs letters in 2012 provided in support did not mention that the applicant was asked to compile a list. The Authority did not accept the 2016 letter as being reliable.

30. The Authority referred to the applicant’s involvement with the TNA. The Authority referred to a sports club’s letter and was prepared to accept the applicant was part of a sports club and assisted with their activities and in the 2012 election.

31. The Authority did not however accept that the sports club letter corroborated the applicant’s involvement in the elections in 2010 or life membership of the TNA or ITAK. The Authority identified further problems with letters supporting the applicant’s attendance at a national conference and placed no weight on those documents.

32. The Authority referred to the MP letters and TMVP letter provided and identified that there are a number of problems and inconsistencies between the documents and the applicant’s claims.

33. The Authority identified the 2012 MP letters as not being consistent with the applicant’s claims in a number of respects. The Authority made reference to the letters not mentioning the instruction of compiling a list of missing persons and not mentioning that the brother was abducted and found the letters were inconsistent with each other. The Authority also made reference to the font not being inconsistent as well as concerns over the email address. The Authority referred to the prevalence of fraud in Sri Lanka and took into account the anomalies in the documents, the document being vague and inconsistent with the applicant’s claims and the key parts of his claims and accordingly, the Authority placed no weight on the letters or TNA card.

34. The Authority made reference to the applicant’s claim initially that he was a supporter and not a member of the party and found it particularly difficult to believe that if he were a life member, that he would not have mentioned that at the outset if it was true. It was in those circumstances that the Authority found the applicant developed and embellished his claims since his arrival.

35. The Authority did not accept the applicant joined as a life member of the TNA party. The Authority did not accept the applicant assisted in the 2010 elections. The Authority considered the applicant to have fabricated his claims about his political involvement and threats to enhance his protection claims.

36. The Authority identified, having given consideration to the applicant’s claims about threats, visits and being slapped and considered that the applicant was not consistent about who threatened him. The Authority also found that the applicant’s accounts at his protection interview was hesitant and lacked credibility. The Authority gave an example in that regard and found the applicant had continued to change and add to his claims. The Authority found it difficult to believe that persons asked the applicant to join in if they did not identify themselves on two or three occasions. The Authority observed that if the person did not identify themselves then the applicant would not have known what group he was being asked to join.

37. The Authority also referred to the applicant’s accounts of threats and visits as being vague, changing and not spontaneous or free flowing. The Authority referred to the delegate asking the applicant about the assaults and what happened and found the applicant was evasive and responded with rehearsed statements about being requested to join Karuna which he refused.

38. The Authority referred to the delegate asking the applicant the details as to what happened in relation to the 20 September 2012 visit and the threat and that the applicant repeated the same vague limited account. The Authority made reference to the applicant’s account of threats made during the national conference and the claimed the assaults were vague and when asked for more details, the applicant repeated the same vague account. The Authority referred to the delegate having to prompt the applicant a number of times for more information about what happened. The Authority found the applicant changed his account about why he was threatened during the national conference. The Authority referred to the applicant’s claim that he was assaulted and threatened not to help organise the national conference and that he later claimed this was because they wanted to him provide the missing person list that he had collated. The Authority referred to having listened to the interview and found the applicant’s evidence was not free flowing or spontaneous, such that the Authority considered the applicant was not recounting a lived experience.

1. The Authority did not accept the applicant’s claims that the group visited his home or brother’s since his arrival in Australia or after the 2015 elections and asked for money. The Authority considered the applicant’s account to be vague and inconsistent in the protection interview and found that his account was not free flowing or spontaneous. The Authority made reference to the applicant indicating that initially he did not know why they visited, then thought it might have been before the election and then said they may have visited because he had previously worked for the TNA.

2. The Authority made reference to the TMVP summons at page 297 of the Court Book which is the subject matter of the second last dot point in paragraph 8 on page 327 of the Court Book, as the date identified is clearly the date of receipt of the summons consistent with what the applicant told the delegate. The Authority made observations about the content of the summons and also took into account that it lacked credibility that the TMVP would send him a letter asking him to attend rather than the TMVP simply attending his home and workplace. The Authority found the demand by the TMVP of the missing list in May 2012 and the wait until September to request the applicant to attend their offices was also lacking in credibility. In these circumstances the Authority placed no weight on the TMVP letter.

3. The Authority referred to having listened to the interviews, considered the claims and documents and did not accept the applicant was threatened, slapped or assaulted by the TMVP, Karuna, paramilitary groups or CID, army or anyone else. The Authority did not accept the applicant’s home was visited by anyone. The Authority did not accept the applicant was asked to be an informant suspected of LTTE links, had his photograph taken with the LTTE, assisted former LTTE rehabilitatees, compiled a missing persons list or a member of the ITAK or TNA. The Authority did not accept that anyone was or is looking for the applicant or that the applicant is or will be of any adverse interest to anyone.

4. The Authority did not accept the applicant’s father’s death raised the applicant’s profile or puts him at risk of harm now or in the future from authorities or paramilitary or other groups in that regard. The Authority accepted the applicant supported the TNA, but did not accept that it caused him difficulties in the past. The Authority found that the applicant was a low level supporter and accepted he may do so on return and referred to taking into account country information.

5. The Authority did not accept that the applicant faces a real chance of any harm on the basis of his actual or imputed political opinion. The Authority did not accept the applicant has any adverse profile or is of any interest to the Sri Lankan authorities. Taking into account country information in respect of torture camps in 2015, the Authority did not accept the applicant’s profile places a real chance of any such harm.

6. The Authority referred to the 2018 DFAT country information report and found the applicant does not face a real chance of suffering harm on account of his ethnicity. The Authority did not accept that the applicant faces any harm upon return in terms of finding employment and accommodation. The Authority referred to taking into account the applicant’s circumstances and the country information and did not accept the applicant faced a real chance of persecution for the reasons advanced.

7. The Authority referred to the applicant being a failed asylum seeker. The Authority did not accept the applicant faced a real chance of harm as a returnee or asylum seeker. The Authority referred to the applicant’s illegal departure. The Authority referred to country information indicating that all returnees are treated the same regardless of their ethnicity and religion and that the laws are not applied in a way that is discriminatory or selectively enforced against particular groups or returnees.

8. The Authority referred to the processing that may be undertaken in that regard based on the country information and the applicant’s circumstances, the Authority did not accept the applicant faces a real chance of torture, interrogation, mistreatment on arrival in Sri Lanka or during the questioning process to establish identity, criminal history and bail. The Authority did not accept the applicant faces any harm as a result of the authorities checking with his home area about his identity as the Authority found the applicant is not of adverse interest to any of the authorities or anyone.

9. The Authority referred to the applicant being briefly held in an airport holding cell if arriving over the weekend. The Authority referred to DFAT country information assessing risk of torture or mistreatment of detainees to be low and considered the applicant’s profile and did not accept the applicant faced a real chance of torture, interrogation or mistreatment upon arrival, during questioning or possible brief detention.

10. The Authority made reference to the Immigrants and Emigrants Act, being laws of general application. The Authority was not satisfied that the questioning, arrest, detention at the airport and the application of a penalty, such as a fine or possible repeated bail appearances for illegal departure, amount to systematic and discriminatory conduct as required by s 5J of the Act. The Authority considered the applicant’s claims individually and cumulatively as well as the applicant’s personal circumstances and was not satisfied the applicant has a well-founded fear of persecution. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

11. The Authority found there were not substantial grounds for believing that as a necessary foreseeable consequence of the applicant being returned to Sri Lanka from Australia there was a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria of s 36(2)(aa) of the Act. The relevant law in relation to the assessment of the applicant’s claims in the review was also attached to the Authority’s reasons.

The grounds

1. The grounds in the application are as follows:

   The second respondent made jurisdictional error by making at [16-22] unreasonable, illogical and/or inconsistent findings that:

   a. the brother of the applicant may have been a successful claimant for refugee status in Canada base upon having being abducted and tortured (and was probably in Canada having claimed protection).

   b. the applicant's accounts in relation to his brother and the abduction and torture had varied.

   c. as a result of b. above the respondent did not accept that the Applicant's brother had been assaulted, abducted and tortured.

   2. The second respondent made jurisdictional error by stating at [23] that the claim to have assisted former LTTE members was 'added.. ... ' to enhance his protection claims without providing any basis for this finding.

   3. The second respondent made jurisdictional error in relation to credibility findings by not taking into account the inherent difficulties and restrictions of the processes of the second respondent in not hearing from or being able to ask questions of the applicant.

   4. Further or in the alternative 3 above the second respondent did not take into account a relevant consideration being restrictions on previous interview processes which may have made it difficult for the applicant to fully elaborate on and advance his claims.

   5. The second respondent made jurisdictional error by finding that the applicant's answers in the protection interview were at (44] 'hesitant' which was a matter beyond the capacity of the second respondent to find.

   6. The second respondent made jurisdictional error by finding that the applicant’s answers in the protection interview were “spontaneous and free flowing” which was a matter beyond the capacity of the second respondent to find.

   7. Further or in the alternative to 6 above, the second respondent made jurisdictional error at [44] by finding that evidence given at a hearing not in front of the second respondent was 'not recounting a lived experience which was either beyond the capacity of the second respondent to judge or in respect of which the second respondent should have acknowledged the inherent restrictions on the process required of it.

   8. the second respondent made jurisdictional error at [46] by dismissing the TMVP summons letter on grounds which were purely speculative and by treating it as if it were a meeting agenda rather than a threat requiring the attendance of the applicant.

   9. the second respondent made jurisdictional error at [76] by failing to assess whether a low risk of torture or mistreatment as a detainee amounted to a real chance and instead assumed that a low risk did not amount to a real chance.

Ground 1

1. In relation to ground 1, Mr Young of counsel on behalf of the applicant identified that this ground was concerned with paragraphs 16 to 22 of the Authority’s reasons and in particular, the finding in paragraph 22 which Mr Young contended was unreasonable, illogical and not open. There was no express reference to ground 1 in the applicant’s written submissions advanced, however the argument focused on the particulars provided. Mr Young accepted that there was no finding that the applicant’s brother may have been a successful claimant for refugee status. Nonetheless, Mr Young submitted that the Authority’s reasoning in relation to the applicant’s account of the brother and the abduction was unreasonable.

2. The Authority’s reasons are not to be read with a keen eye for error and must be read as a whole. The Authority in rejecting the applicant’s claims concerning the brother, gave logical and rational reasons in support of the same by reference to the applicant’s omission of any such claim when first given an opportunity to do so. The Authority’s reasons also referred to the lack of detail and the applicant’s account changing which the Authority found to lack credibility as summarised above. The Authority provided an example in that regard and referred to the applicant’s account of the brother being in hiding changing from distant relatives, to friends and then changed to distant relatives likes friends.

3. The Authority also identified problems in relation to the partial payment for the release of the brother lacking credibility. Given the reference to the brother being a claimant for protection, the adverse finding by the Authority in relation to not accepting that the brother was a refugee was logical, rational and reasonable. The adverse finding in relation to the rejection of the brother’s claims for the reasons given by the Authority was open to the Authority as summarised above and cannot be said to be legally unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Grounds 2 to 7

1. In relation to grounds 2 to 7, Mr Young submitted that there were findings that have been made by the Authority of express fabrication or tantamount to lying or recent invention which Mr Young submitted required cogent reasons to support the same. Mr Young submitted that only in the clearest of cases one would make such findings.

2. The adverse findings by the Authority, the subject of ground 2 to 7, were clearly open to the Authority and the subject of logical and rational reasons in support of the same as summarised above.

3. There were two express references to fabrication and Mr Young gave examples by reference to paragraphs 24 and 40 of the Authority’s reasons. Mr Young contended the reference in paragraph 23 and 25 were to the effect of recent invention and that the finding in paragraph 44 and 45 was akin to lying. Mr Young’s written submissions sought to criticise the Authority’s reasoning in paragraph 15 as to the applicant not being affected by asthma. That is not what is said by the Authority. The reasoning of the Authority in relation to paragraph 15 concerning the social worker’s letter was a fair summary of the same and the adverse findings were logical and rational and does not identify any relevant error.

4. In relation to Mr Young’s submissions concerning paragraph 23 of the Authority’s reasons, those reasons must be read in context and as a whole. Before the finding made in paragraphs 23 and 24, the Authority identified problems with the applicant’s claims and evidence and the Authority gave detailed examples of those problems in the paragraphs following paragraphs 23 and 24 which the Court has summarised above. Those adverse findings were logical and rational for the reasons given by the Authority and the finding of fabrication cannot be said to lack an evident and intelligible justification in paragraph 24. The reasoning was sufficiently cogent to support the finding and the contention to the contrary invites merits review.

5. Mr Young took issue, in particular, with the use by the Authority of the applicant’s evidence not being free flowing, being an expression found twice in paragraph 44 and also in paragraph 45 of the Authority’s reasons. It is apparent that the Authority listened to the applicant’s evidence and whether the Authority considered the applicant's evidence to be free flowing or evasive was a logical and rational matter for the Authority to take into account in the Authority’s reasons. The Authority also referred to the vague and limited accounts given by the applicant and the prompting by the delegate in the changing of the applicant’s account. The Authority’s adverse credibility of findings were open to the Authority for reasons given by the Authority in relation to paragraphs 43 and 44 as summarised above. Those reasons must be read as a whole together with the other adverse findings by the Authority. No jurisdictional error as alleged in grounds 2 to 7 is made out.

Ground 8

1. In relation to ground, 8 Mr Young took the Court to the summons at page 297 of the Court Book. In paragraph 46 of the Authority’s reasons, Mr Young, criticised the reasoning that the Authority advanced in relation to the observation that the TMVP would attend the home or workplace rather than send a letter. The Authority’s finding in that regard was logical, rational and an open matter for the Authority to take into account in its adverse findings. Further, the Authority’s reasons were not confined to the proposition as to attending a workplace or home rather than sending a letter. The submission invites impermissible merits review.

2. The Authority gave a number of reasons for its decision to place no weight upon the purported summons. These reasons included concerns in respect of the form of the summons, the lack of details, the absence of any reference to the bringing of documents or the list of missing persons and the time delay between the TMVP demanding the missing persons list in May 2012 and the alleged summons in September 2012. It was open to the Authority in those circumstances to place no weight upon the TMVP letter. That reasoning of the Authority was logical, rational and reasonable. No jurisdictional error as alleged in ground 8 is made out.

Ground 9

1. In relation to ground 9, Mr Young took the Court in particular to the Authority’s reasoning in paragraph 76 where the Authority identified the substance of what was said in a DFAT country information report in respect of an assessment of risk of torture or mistreatment to detainees being assessed as being low. Mr Young suggested that the Authority had accordingly misapplied the relevant test as a low risk could still be a real chance of significant harm. Mr Young referred to the authorities identifying that a risk that was not remote is a real risk for the purpose of the Refugees Convention and also the notion of complementary protection.

2. The Authority’s reasons in paragraph 76 must be read as a whole together with the Authority’s reasons and the annexing of the relevant law to the Authority’s reasons. The Authority was clearly referring to what was said in a DFAT country information report and did not misapply the correct test. Further, the Authority did not make the finding that the applicant does not face a real chance of torture, interrogation of mistreatment based only on the DFAT country information report. The Authority took into account the DFAT country information report, the applicant’s profile and the applicant’s particular circumstances. That reasoning does not reflect any misapplication of the relevant tests which the Authority applied in paragraph 81 of the Authority’s reasons.

3. The Court does not accept that there was any error as alleged in ground 9 by the Authority in the determination of whether the applicant met the requirements of the Refugees Convention. No jurisdictional error as alleged in ground 9 is made out.

4. As the application fails to make out any jurisdictional error, accordingly, the application is dismissed.

Costs

1. Mr Young of counsel has submitted that there should be no order for costs. The premise of the argument in that regard is that there was an order of this Court made on 12 June 2018 which Mr Young contends was not complied with because there is a letter dated 7 August 2018, identifying that certain documents were missing. They were the documents that were found to be missing that gave rise to the relief that was earlier granted by this Court. The argument that there has been non-compliance with the Court’s orders lacks substance. Further it was submitted that the loss of documents gives rise to circumstances where there should be no order as to costs. This fails to recognise that it is the applicant that has instituted these proceedings, having been unsuccessful before the Authority, and that the ordinary law is that costs follow the event. I see no reason to depart from the ordinary rule.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019