DRX17 v Minister for Immigration

[2018] FCCA 2060

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2060

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to give relevant consideration to the applicant’s claims – whether the Authority misconstrued and misapplied s 473DD of the Act – whether the Authority failed to give realistic consideration to integers of the applicant’s claims – whether the Authority failed to give proper consideration to the evidence before it – whether the Authority failed to consider the applicant’s claims cumulatively – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: DRX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2596 of 2017

Judgment of: Judge Street

Hearing date: 27 July 2018

Date of Last Submission: 27 July 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

Counsel for the Applicant: Mr A Kumar
On a direct basis

Solicitors for the Respondents: Mr A Moss
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 30 January 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2596 of 2017

DRX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 31 July 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant arrived in Australia as an unauthorised maritime arrival on 23 October 2012. The applicant was found to be a Tamil from a family who are relatively wealthy from the Eastern Province of Sri Lanka, who had faced extortion from paramilitary groups and who feared he would be perceived as a failed asylum seeker and who left Sri Lanka illegally. The applicant also claimed to fear harm because of an imputed political opinion.

3. On 17 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 21 February 2017, the Authority wrote to the applicant informing the applicant that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant did provide further material to the Authority on 17 March 2017, which was expressly referred to by the Authority in relation to the requirements of s 473DD of the Act. The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act.

3. The Authority expressly referred to submissions in respect of a letter dated 13 March 2017. The Authority identified that the letter was not before the delegate and found the same to be new information for the purpose of s 473DD of the Act. The Authority referred to the proposition submitted on behalf of the applicant that had the letter been known to the delegate it may have affected consideration of the applicant’s claims and that there are exceptional circumstances when a person’s life is at risk. The Authority identified the significance of the letter because the applicant still has life-threatening issues by the Karuna group and deputy army group. The letter itself was written after the delegate’s decision and the applicant stated that he got the information due to being a member of parliament in the exercise of his moral duties, and it appears to have been requested by the applicant as he had instructed his representatives to provide the Authority with the letter.

4. The Authority observed it is not apparent why such a letter of support could not have been obtained before the delegate’s decision was made, and took into account that the letter said the applicant “still has life-threatening issues by the Karuna group and deputy army group”, but does not indicate that anything referred to relates to the events in the three to four weeks between the delegate’s decision and the letter itself. The Authority found there were not exceptional circumstances to justify considering the new information.

5. The submissions in support of the letter expressly referred to the proposition that this was information which had it been known by the delegate may have affected the consideration of the referred applicant’s claims. The submissions expressly describe the same as being new information.

6. The Authority referred to other new information provided and found, in respect of two news reports, that there were exceptional circumstances to justify considering the same. The Authority was not satisfied that there were exceptional circumstances to justify considering a particular report which the Authority found the circumstances in respect of the shooting had no similarities to those of the applicant.

7. The Authority summarised the applicant’s claims. The Authority referred in that regard to the applicant’s family, the allegation that the applicant’s family have always been political, and that his father was an active member of the Tamil National Alliance (“TNA”) from 1971, and that his paternal cousins and uncle were active members of the Liberation Tigers of Tamil Eelam (“LTTE”). The Authority’s summary of the applicant’s claims included a reference to the father being kidnapped by the paramilitary, and the father being tortured in 2011 and allegedly dying from those wounds.

8. Reference was made by the Authority to a claim that during the elections in 2012 the TNA asked the applicant to help them, and the Sri Lankan authorities allegedly found out that the applicant had provided a van to the TNA, and that in July 2012 the Sri Lankan authorities came to the applicant’s home and they shot the windscreen of his van and slashed his tyres. It was alleged the Sri Lankan military came to the applicant’s house and assaulted the applicant and his wife and tried to shoot him. The applicant alleges the authorities blindfolded him and put him into van and he was taken to a place with other people where he was tortured and not given enough food. The applicant alleges they were told that they would be killed after the provincial council election in September 2012. The applicant alleged he escaped and that while escaping the paramilitary shot him, and that he ran to a house and called his wife who took him to a Tamil doctor.

9. The applicant also claims to fear harm for the safety of his wife and daughter from the Karuna group and the paramilitary. The Authority summarised a claim that after the new government was elected, some people came to the applicant’s home and asked his wife about his whereabouts, that the people threatened the applicant’s wife and demanded that she pay them money. The applicant claimed that they came to the home three times and on the third occasion the wife gave them money, and that the people told the applicant’s wife that the applicant needed to keep giving them money and that if he returned they would shoot him because he escaped from the camp.

10. The applicant claimed to fear harm in Sri Lanka if he returns because of his imputed political opinion, race and being a failed asylum seeker who left unlawfully.

11. The Authority summarised the relevant law. The Authority referred to the past events and, in particular, on the evidence accepted that the applicant had family members that were active members of the LTTE and that some were killed, tortured and some are still missing. The Authority referred to the applicant’s claim that his family were supporters of the LTTE and were targeted by the government and paramilitary. The Authority found that although the applicant has not provided any specific events where he or his immediate family were targeted as a result of their support for the LTTE. Based on country information and the applicant’s testimony, the Authority was prepared to accept that the applicant and his family were forced to help the LTTE because they were Tamil. The Authority accepted that during the years of conflict, as a Tamil, the applicant may have been perceived to have supported the LTTE.

12. The Authority referred to the applicant’s claim that he and his family were always watched because of their support for the TNA and the LTTE, that there were many instances of harm towards his family and him over the years. The Authority found it improbable that the applicant and his family were always watched as a result of their perceived support for the TNA and the LTTE. The Authority was however prepared to accept that the applicant and his family did attract attention and suffered discrimination as a result of their Tamil ethnicity during the years of conflict. 

13. The Authority referred to the applicant travelling to Dubai in 2005, and accepted as plausible that the reason was because his father thought it was good for him to get away from the harassment that he suffered as a Tamil. The Authority accepted that the applicant’s brother left Sri Lanka and now lives overseas.

14. The Authority accepted that a paramilitary group had abducted the applicant’s father and it was likely that he was assaulted and sustained injuries that required hospitalisation. The Authority accepted as plausible, taking into account country information and the applicant’s testimony, that after release of the applicant’s father his family received threatening phone calls and men from the paramilitary groups would attend his home to look for him. The Authority accepted the father was kidnapped by the paramilitary in 2011 and that his mother paid to secure his release. The Authority accepted that the applicant’s father suffered injuries and died on 23 July 2011 from those wounds. The Authority accepted the applicant went into hiding and did not attend his father’s funeral. The Authority referred to the applicant being asked whether his father was kidnapped for an extortion attempt and the applicant responding yes and that it was the Karuna Group who did this. The Authority accepted that these incidents occurred and based on country information and the applicant’s own evidence, was not satisfied that it was the result of the applicant’s father’s membership in the TNA, or the applicant’s family’s support for the TNA or imputed links to the LTTE, but because his father was a successful business owner and was a suitable target for extortion.

15. The Authority accepted that the applicant and his family had supported the TNA for some years and that his father had been an active member. The Authority referred to country information indicating the TNA has significant support in Sri Lanka. The Authority accepted that the Sri Lankan authorities vandalised the applicant’s van when they found out he had provided his van to the TNA, but found that the length of time that had elapsed since the events of 2012, and taking into account country information that the political landscape had changed considerably since the applicant left Sri Lanka. It was in these circumstances that the Authority found the applicant’s work with the TNA in the 2012 provincial elections would not result in a real chance of serious harm should the applicant return to Sri Lanka.

16. Taking into account the applicant’s evidence, the Authority found the applicant was a low level supporter of the TNA at most. The Authority found there was no evidence to support that the applicant was a formal member or that he was ever involved in anything other than low level activities. The Authority found there was no independent evidence to suggest that low level TNA supporters continue to be at risk of serious harm many years after the elections. The Authority found there was no evidence to suggest the applicant would continue to assist the TNA in the future. The Authority found that even if the applicant did continue to assist the TNA, the Authority was not satisfied that the applicant would face serious harm amounting to persecution, particularly given the changed political climate since the 2012 elections.

17. The Authority referred to the applicant suffering harm due to extortion by paramilitary organisations, and took into account country information that there are no longer any active paramilitaries in Sri Lanka. The Authority referred to the applicant being regularly in contact with his family in Sri Lanka and accepted that his wife was extorted for money after the new government was elected. The Authority however found that since this incident, there is no evidence that there has been further extortion attempts on the applicant or his family and that it is two years since the last instance.

18. The Authority took into account other country information and was not satisfied the Karuna group continues to be active in paramilitary or criminal activities, and was not satisfied that the Karuna group poses a risk to the applicant in that capacity. The Authority was satisfied the applicant does not face a real chance of harm from the Sri Lankan authorities, the Karuna group, or any other paramilitary group or the men who previously tried to extort him on the basis of being someone from a wealthy family now or in the reasonably foreseeable future.

19. The Authority referred to an incident in July 2012 where the Sri Lankan military came to the applicant’s house and assaulted him and his wife, and the applicant was blindfolded and taken to an unknown location where another person who was in the van was taken out, shot and buried near a cemetery. The Authority referred to the applicant, while escaping, saying that he was shot and he was taken to a Tamil doctor. The Authority accepted the incident took place. The Authority accepted that these past incidents have affected the applicant’s physical and mental health.

20. The Authority referred to an incident in which the applicant was informed that his wife told him people came to his home and asked about his whereabouts, and that they threatened her and demanded she pay them money, and that they came to his wife on three occasions and on the third time she gave them money. The Authority referred to the assertion that the applicant’s wife had to keep giving them money and that if the applicant returned they would shoot him because he escaped from the camp. The Authority accepted that the applicant was detained by the Sri Lankan Army (“SLA”) in July 2012 and that he escaped after some time. However, based on the evidence before the Authority, the Authority did not accept that these men came to the applicant’s wife due to any connection with the SLA or the time that the applicant was detained, but rather because the applicant was the subject of extortion by paramilitary groups or individuals, and not as a result of his support for the TNA, his Tamil ethnicity or any perceived association with the LTTE. The Authority found it was not satisfied the applicant would suffer serious harm amounting to persecution on the basis of his support for the TNA now or in the reasonably foreseeable future.

21. The Authority referred to the applicant being a young Tamil male from a former LTTE-controlled area. The Authority referred to the applicant’s uncle and cousins being involved with the LTTE and was not satisfied that this would lead to any adverse consequences for the applicant even if the family link was identified. The Authority found the applicant would not be imputed to hold pro-LTTE opinions, or be suspected of ever having been involved with the LTTE himself, given his young age during the war years. The Authority was not satisfied that a family connection to relatives who had, at most, the Authority found, a low level association with the LTTE and who are either deceased or missing, would give rise to a real chance that the applicant would face serious harm for this reason on return to Sri Lanka, including on the basis that it would result in him being imputed as an LTTE supporter. The Authority found there was no real chance of the applicant being harmed by the Sri Lankan authorities or any other group or person on the basis of being a young Tamil male from a former controlled LTTE area now or in the reasonably foreseeable future.

22. The Authority turned to the applicant being a failed asylum seeker who departed illegally. The Authority found the applicant has no identity concerns, or criminal or security records that would raise the concerns of authorities. The Authority found the applicant has no relevant profile as a person with actual or suspected links to the LTTE, or for any other reason. The Authority was satisfied the applicant will not be subject to risk of harm during or as a consequence of routine investigation. The Authority found that if the applicant were to plead guilty, he would either be immediately granted bail on personal surety, or he might have to wait to be collected by a family member if required to have a family member act as guarantor. The Authority referred to their rarely being conditions imposed upon bail. The Authority found the applicant would not be required to report regularly to local police in his village and was satisfied that the applicant is not at risk of harm in those circumstances. The Authority was not satisfied having to pay a fine amounts to serious harm in the present case.

23. The Authority referred to the Immigrants and Emigrants Act 1948 (Sri Lanka) and the processes thereunder and found that it was a law of general application and it would not amount to persecution within the meaning of s 5J(4) of the Act, and was satisfied that the law is not applied in a discriminatory manner.

24. The Authority did not accept the applicant would be imputed with pro-LTTE or anti-government dissident beliefs by the authorities for any reason, and found the applicant does not face a real chance of persecution on returning to Sri Lanka.

25. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act, and found the applicant does not meet the criteria under s 36(2)(a) of the Act.

26. The Authority was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

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

   Ground 1

   The Authority failed to take into account a relevant consideration and/or failed to consider a claim (CB99; SOC at [26]). The Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Applicant claimed that he was abducted, blindfolded and taken in a van to unknown location.

   (b) The Applicant claimed that there was another person in the van (SOC at [26]).

   (c) The abductors removed the blindfold.

   (d) He saw another person in the van being shot and buried in the nearby cemetery.

   (e) The Applicant was told by the abductors that same would happen to him.

   (f) The Authority failed to engage with the claim.

   (g) The Authority has erred in failing to consider the risk to the Applicant as witness to the murder.

   (h) The Authority thereby committed jurisdictional error.

   Ground 2

   The Authority failed to take into account a relevant consideration and/or failed to consider the claim relating to white vans. The Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Applicant claimed that he feared harm at the hands of paramilitaries/abduction by white vans (SOC at [26]).

   (b) The Authority failed to engage with the claim.

   (c) The Authority thereby committed jurisdictional error.

   Ground 3

   The Authority erred in the construction of the Act (s 473DD and s 473DE) in refusing to give consideration to certain information provided by the Applicant (IAA at [5]) and erred in failing to consider information provided/erred in the construction of the section and/or asked wrong question and thereby committed jurisdictional error.

   Particulars

   (a) The Applicant provided letter dated 13 March 2016 from MP S Y.

   (b) The Authority failed to engage with the Applicant's documents.

   (c) These document/information was further corroborative information.

   (d) There were life threatening corroborative information to consider.

   (e) There were ongoing problems regarding the Applicant and the letter engages with that point.

   (f) The Authority erred in consideration of its discretion and failed to exercise its discretion in according with the law.

   (g) There were exceptional circumstances.

   (h) The Authority fell into jurisdictional error.

   Ground 4

   The Authority fell into error when it failed to consider the Applicant's claim that he would be harmed owing to extortion (at 24]). The Authority failed to ask correct question and/or asked incorrect questions regarding Applicant's risk upon return and thereby committed jurisdictional error.

   Particulars

   (a) The Applicant claimed that demands for money were made to his [IAA at [24]).

   (b) The Authority accepted that the Applicant's wife paid monies.

   (c) The Tribunal has failed to ask the correct question as to impact on the Applicant were the activities.

   (d) The Tribunal has asked incorrect question and has failed to ask the correct question.

   (e) There were previous instances of torture accepted by the delegate (delegate at p7)

   (f) The Authority found that the persons extorting did not have connections to SLA.

   (g) The authority fell into error conflating the lack of SLA connection as a factor that the harm was not significant.

   (h) The Authority failed to address whether the claims gave rise to complementary protection.

   (i) The Tribunal has not assessed / did not address and has not considered this claim/integer of claim.

   (j) The Authority thereby committed jurisdictional error.

   Ground 5

   The Authority failed to give realistic consideration to the claim regarding/and or reached the conclusion evidence (IAA at [19]) regarding future political activities and/or is illogical or irrational. The Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has classified the Applicant's future involvement as low level.

   (b) The Applicant's family have always involved in political activities (together with his status the Tribunal reached illogical/irrational findings

   (c) There were ongoing problems regarding the Applicant and the letter engages with that point.

   (d) The Authority has given realistic consideration and has not made appropriate findings in respect of the claims.

   (e) The Authority thereby committed jurisdictional error.

   Ground 6

   The Authority's decision is affected by jurisdictional error when it found that the whilst the Applicant would be arrested and detained upon return to Sri Lanka without evidence found that the Applicant would secure bail by guarantor [IAA at [31]); the Authority has fallen into jurisdictional error when it failed to address/consider the proper basis upon which bail would be granted based on the evidence before it.

   Particulars

   6.1 The Authority did not properly consider the Applicant’s his ability to secure bail.

   6.2 The Authority did not consider the Applicant’s special circumstances where the Applicant has previously departed Sri Lanka illegally/involved in diaspora activities.

   6.3 The Authority has presumed that the Applicant would be released on bail without making the appropriate findings based on information before it.

   6.4 The Authority has fallen into error.

   Ground 8

   The Authority failed consideration that despite acceptance of torture and other harm (CB 179; IAA at [23] – [24]) to give realistic consideration to the acclaim regarding / and or reached the conclusion evidence these types of harm and/or is illogical or irrational. The Authority has thereby committed jurisdictional error.

   Particulars

   (f) The Authority has accepted incidence of detention/torture (CB179; IAA at [23] -

   [24]) classified the Applicant's future involvement as low level.

   (g) The harm committed on the Applicant was much after the ending of the war and closer to his departure; the Tribunal reached illogical/irrational findings.

   (h) There were ongoing problems regarding the Applicant.

   (i) The Authority has given realistic consideration and has not made appropriate findings in respect of the claims.

   (j) The Authority thereby committed jurisdictional error.

   Ground 9

   The Authority erred in the considering s 473DD of the Act. The Authority's decision to reject what it termed "new information" is affected by jurisdictional error as it failed to consider all the circumstances and/or misconstrued and misapplied s 473DD when it rejected the information.

   Particulars

   (a) The Authority failed to engage with the Applicant's documents appropriately.

   (b) The Authority all the circumstances constituting exceptional circumstances.

   (c) The Authority did not make appropriate findings in rejecting the information.

   (d) The Authority fell into jurisdictional error.

   Ground 10

   The Authority's decision to reject what it termed "new information" is affected by jurisdictional error at it failed to consider in the circumstances when it rejected the "new information" thereby denying the applicant procedural fairness as circumscribed by the practice direction.

   Particulars

   (a) The Authority limited the amount of information that the Applicant could put before the Authority.

   (b) The Authority did not engage with what it termed new information unless it was satisfied that there were exceptional circumstances (erred in this respect as asserted above) and in following the Practice Directions limiting the information denied the Applicant procedural fairness;

   (c) In limiting the Applicant pursuant to the Practice Direction the Authority has denied the Applicant procedural fairness.

   (d) The Authority has fallen into jurisdictional error.

   Ground 11

   The Authority erred in failing into account all the claims cumulatively in respect of Convention protection and thereby committed jurisdictional error.

   Particulars

   (i) The Authority has not considered the claims cumulatively.

   (j) The Authority thereby committed jurisdictional error.

1. The Court notes that ground 7 of the amended application had been deleted and Mr Kumar of counsel on behalf of the applicant confirmed that ground 10 was abandoned.

Ground 1

1. In relation to ground 1, Mr Kumar took the Court to the Tribunal’s reasons in paragraphs 9 and 23, as well as to the applicant’s statement at paragraphs 98 and 99, and submitted that there was an integer of the applicant’s claim that he was a witness to murder that was not the subject of finding by the Authority. The Authority expressly referred, in the Authority’s reasons as summarised above, to another person being taken out of the van and shot at paragraph 23.

2. I do not accept that there was an integer of the applicant’s claims that was not the subject of findings by the Authority. There was no separate claim by the applicant to fear harm that squarely arose on the material before the Authority because of having been a witness to a person being shot that came out of the van. The incident in respect of the person being shot was in the context of the applicant’s claims in respect of which the Authority made dispositive findings. In paragraph 24, the matter was advanced in the context of interest by the SLA for the applicant’s support of the TNA or pro-LTTE support, which, again, was the subject of dispositive findings in paragraph 28 of the Authority’s reasons.

3. In those circumstances the asserted fear of harm from persons other than the Sri Lankan authorities due to the applicant witnessing the murder in 2012 cannot be said to be an integer or an issue squarely or clearly arising on the materials before the Authority. The applicant did not claim that any other persons than himself or the detainees of the Sri Lanka Army were involved in the 2012 incident. There was no failure to take into account a relevant consideration or failure to consider an integer of the applicant’s claims as alleged in ground 1. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Kumar of counsel submitted that the Authority had failed to take into account the applicant’s claims concerning white vans. Mr Kumar took the Court to the Tribunal’s reasons in paragraphs 21 and 23.

2. I accept the first respondent’s submission that the applicant’s claims that the applicant fears harm from the Karuna group and other paramilitary groups, including by way of abduction was taken into account by the Tribunal, and that this was the subject of dispositive findings by the Tribunal in paragraphs 20, 21, 23 and 24. This is further supported by the Authority’s reasoning in paragraphs 18 and 19, where the Authority found the applicant did not face a real risk of harm from any paramilitary groups if returned to Sri Lanka on the basis of country information, which said that there are no longer any active paramilitary groups in the country. The finding in paragraph 21 reflects a dispositive finding in respect of the applicant’s claim to fear harm from paramilitaries, including abductions. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Kumar submitted that a letter dated 13 March 2016 had not been the subject of proper consideration by the Authority under s 473DD of the Act. Mr Kumar submitted, first, that the Authority had misconstrued the relevant provision by failing to take into account both limbs. Mr Kumar submitted, further, that the letter itself was not new information as it was a translation of another letter in the Court Book. Mr Kumar further submitted that the Authority had failed to consider and address the issue of exceptional circumstances in respect of the document.

2. It is apparent from the Authority’s reasons referred to above that the Authority took into account both limbs of s 473DD of the Act in considering whether there are exceptional circumstances to justify considering any new information. The Authority was correct to identify the letter as new information. Contrary to Mr Kumar’s submission, the letter was not a translation of another document in the Court Book and no such submission was advanced on behalf of the applicant to the Authority. The submission advanced to the Authority was that the letter was new information.

3. There is no basis in the circumstances of the present case to find that the Authority failed to have regard to both limbs of s 473DD of the Act. There is no basis to find that the Authority misconstrued or misapplied the statutory provision in the present case. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Kumar submitted that the Authority had failed to consider the applicant’s claims of extortion. Paragraph 24 of the Authority’s reasons reflects a dispositive finding in respect of the applicant’s claims concerning the alleged extortion. The Authority expressly found that the men did not come to the applicant’s wife due to any connection with the SLA or the time that the applicant was detained, but because the applicant was the subject of extortion by paramilitary groups or individuals and not as a result of his support for the TNA, his Tamil ethnicity or any perceived association with the LTTE.

2. The Authority had also made a finding taking into account that there was no active paramilitaries in Sri Lanka and that previous incidents of extortion were not due to the applicant’s ethnicity or his actual imputed political opinion, but instead because of his status as a wealthy family. The Authority’s findings in paragraphs 20 to 22, and paragraph 24 were open on the evidence and there was no conflation or misunderstanding of the applicant’s claims or the evidence before the Authority.

3. The Authority did not accept the extortion attempts were connected to the SLA. The Authority drew an inference that the motivation for the incident was not the applicant’s ethnicity or political activities, and accordingly found the applicant would no longer be the target for extortion for any claimed reason upon his return to Sri Lanka. That information was open to the Authority. The Authority’s adverse finding in paragraph 34 subsumed this claim, taking into account the adverse findings that have been made. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Kumar took the Court to paragraph 19 of the Authority’s reasons and also the content of the applicant’s statement, particularly at paragraph 8. Mr Kumar also referred to the reference in paragraph 9 to the applicant’s family having always been political.

2. The Authority’s reasons in paragraphs 14, 15, 17 and 19 reflect a real and genuine consideration of the applicant’s claims. It was open to the Authority to find that the applicant was a low-level supporter of the TNA. Accordingly, the adverse findings in paragraphs 21, 22, 24 and 34 were open to the Authority for the reasons given by the Authority as summarised above. There was no irrationality or illogicality in the reasoning of the Authority in this regard, nor did the Authority fail to give realistic consideration to the applicant’s claims. The finding of low-level support by the applicant and his family was open to the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, Mr Kumar accepted that the applicant had family in Sri Lanka, but submitted that the Authority had failed to take into account the applicant’s particular circumstances. The reasons of the Authority as summarised above reflect a consideration of the applicant’s particular circumstances, and the adverse findings taking into account the country information referred to by the Authority were open to the Authority for the reasons summarised above.

2. Mr Kumar, in the course of submissions, identified that ground 6.2 was not pressed as it did not relate to the applicant.

3. The Authority also took into account the applicant’s relatives as referred to in paragraph 28. The Authority’s reasons are to be read as a whole and without a keen eye for error. Further, this is a case where, on the applicant’s own evidence, his family was wealthy and the inference drawn by the Authority was open to the Authority on the evidence before the Authority. No jurisdictional error as alleged in ground 6 is made out.

Ground 8

1. In relation to ground 8, Mr Kumar submitted that the findings of the Authority, where the Authority accepted the experiences that the applicant had been subjected to in paragraphs 23 and 24, were illogical in relation to the risk of the applicant facing future harm, or were otherwise irrational or a failure to give realistic consideration to the applicant’s claim. At paragraph 18 and 19 of the Authority’s reasons the Authority accepted the applicant’s claim to have been assaulted, kidnapped and tortured, as well as having been shot in July 2012.

2. Based on country information and the passage of time and the low level of the applicant’s previous involvement with the TNA, the Authority was not satisfied the applicant faces a real risk of serious harm amounting to persecution on the basis of his past support for the TNA if returned to Sri Lanka. The Authority gave an evident and intelligible justification for the adverse findings and accordingly, the adverse findings cannot be said to be unreasonable. The adverse findings in paragraph 23 and 24 were rational and logical and reflect a real and meaningful engagement with the applicant’s claims. No jurisdictional error as alleged in ground 8 is made out.

Ground 9

1. In relation to ground 9, Mr Kumar accepted that this ground could not succeed if ground 3 was not made out. For the reasons already given, ground 3 fails to make out any jurisdictional error. Mr Kumar confirmed, when the issue was raised by Mr Moss, that the issue raised in relation to ground 9 was confined to the same ground as raised by ground 3. No jurisdictional error is made out by ground 9.

Ground 11

1. In relation to ground 11, Mr Kumar submitted that the Authority was required to give cumulative consideration to the applicant’s claims in the circumstances of the present case. Mr Kumar referred to the incidents that the Authority had accepted, and submitted that in those circumstances this was a case where, because of the applicant’s support for the LTTE, the incident in July 2012, and the applicant’s father’s incident, that the Authority was expressly required to consider the applicant’s claims cumulatively.

2. On the face of the Authority’s reasons the Authority made dispositive findings in respect of each of the applicant’s claims. The absence of expressly stating that the Authority has considered the applicant’s claims cumulatively does not, of itself, amount to error. On the face of the Authority’s reasons the Authority properly considered each integer of the applicant’s claims and the whole of the case that was advanced on behalf of the applicant. The Authority made dispositive findings as summarised above by reason of which there was no statutory obligation to expressly refer to and assess the applicant’s claims cumulatively.

3. In the circumstances of the present case, where each of the individual claims have been found not to give rise to a real risk of significant harm, then no amount of cumulative consideration of those rejected claims is capable of producing a different result. Further, the Authority’s reasons are not to be read with a keen eye for error. I accept the first respondent’s submission that whilst the Authority did not expressly refer to cumulatively considering the claims, it is open to the Court to infer that the Authority did so taking into account the Authority’s reasons as a whole, including paragraphs 34, 37 and paragraph 40. No jurisdictional error as alleged in ground 11 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 September 2018