DUZ17 v Minister for Immigration

[2019] FCCA 539

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUZ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 539

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – temporary protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 473CB, 473DC, 473DD.

Cases cited:

DBE16 v the Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v the Minister for Immigration and Border Protection [2018] FCAFC 12

Applicant: DUZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1850 of 2017

Judgment of: Judge Hartnett

Hearing date: 26 February 2019

Delivered at: Melbourne

Delivered on: 8 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Solomon-Bridge

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1850 of 2017

DUZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of a decision of the Second Respondent, the Immigration Assessment Authority (‘the IAA’), which affirmed a decision of the delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a subclass XD-785 temporary protection visa (‘the visa’). The Applicant proceeds on an amended application filed on 29 January 2019. The grounds of the amended application are six in number, grounds 1 and 4 being abandoned, and are as follows:- 

   “2. The Second Respondent failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent by failing to consider the claims made by the Applicant that he was a person in respect of whom the First Respondent should be satisfied Australia has protection obligations pursuant to section 36(2)(a) of the Act on a cumulative basis, including the various reports of endemic abuse of human rights including torture of people by the authorities; that he was a young Tamil male from an area previously under the control of the LTTE; a young man who on a number of occasions had been detained, interrogated about the LTTE, and severely mistreated; an illegal emigrant and failed asylum seeker; and especially including that he was the only son in his family and therefore presumed to have been involved with the LTTE.

   3. The Second Respondent failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent by failing to consider the claims made by the Applicant that he was a person in respect of whom the First Respondent should be satisfied Australia has "complementary" protection obligations pursuant to section 36(2)(aa) of the Act on a cumulative basis , including the various reports of endemic abuse of human rights including torture of people by the authorities; that he was a young Tamil male from an area previously under the control of the LTTE; a young man who on a number of occasions had been detained, interrogated about the LTTE, and severely mistreated; an illegal emigrant and failed asylum seeker; and especially including that he was the only son in his family and therefore presumed to have been involved with the LTTE.

   5. The decision of the Second Respondent to affirm the decision of a delegate of the First Respondent was legally unreasonable.

   Particulars

   (a) 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, when the credibility of the Applicant was critical to the Authority's decision, there was a significant interval between the interview of the applicant by the Minister's delegate and the decision by the Authority, and some of the Applicant’s evidence was rejected as "a recent invention" because of its view of “the late stage at which this information was introduced and the inconsistency of this information".

   (b) The Authority failed to consider that the applicant could be of genuine adverse interest to the authorities, even without being arrested or charged, shown by repeated detention, interrogation and abuse.

   6. The Second Respondent erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent.

   Particulars

   (a) The Applicant refers to and repeats Particular (a) to Ground 5 of this application

   (b) The Authority did not in fact apply the test whether there was a "real chance" the applicant may suffer serious or significant harm, but required a higher probability of harm, shown by its affirming the delegate's decision although it accepted that the Applicant “was harassed, questioned and possibly abused by the local security forces” and that “given the applicant’s prior experience of detention and questioning by the authorities, he is concerned about future treatment by the CID and the army should he return to Sri Lanka.”

   7. The Authority erred in the exercise of its power under Part 7AA and section 473DC of the Migration Act 1958 and thereby denied the Applicant natural justice or procedural fairness.

   Particulars

   (a) The Applicant refers to and repeats Particular (a) to Ground 5 of this application.

   8. The Authority failed to have regard to relevant considerations including relevant information.

   Particulars

   (a) The Authority referred to some material about the situation in Sri Lanka, but it failed to have regard to a great volume of other information about abuses of human rights (including an entrenched culture of torture and or serious abuses by the authorities) put in submissions before the delegate and before the authority.

   (b) The Authority failed to consider and to determine the risk to the applicant, separately and cumulatively, resulting from the fact that he was an only son, leading him to be presumed to have had involvement with the LTTE.

   (c) The Authority failed to consider that the applicant could be of genuine adverse interest to the authorities, even without being arrested or charged, shown by repeated detention, interrogation and abuse.”

2. The First Respondent submits that no jurisdictional error attends the decision of the IAA and seeks dismissal of the application and costs.

Background

1. The Applicant is a Sri Lankan Tamil who arrived in Australia on 6 September 2012 as an illegal maritime arrival. He departed Sri Lanka illegally. His claims are as set out in paragraph seven of the Decision and Reasons (‘the Decision Record’) of the IAA in (summary form) and are as follows:-

   “ - He is a single male, Hindu Tamil from the Mullaitivu District in the Northern Province of Sri Lanka, aged approximately 23 years. He is the only son in his family.

   - The area where the applicant lived was controlled by the LTTE for a long time. His sister was injured in her shoulder during a shelling incident. The applicant has also sustained scars on his body that were inflicted during bombing attacks by the Sri Lankan army.

   - In 2009, his family fled to an army-controlled area in Vavuniya and they lived in the Kathikarma army camp for about one year. While relocating, the applicant was running from the army and was injured on some wire which resulted in scarring to his chest.

   - While in the camp, the applicant and his father were taken for questioning many times. The applicant was forced to strip and was accused of being part of the LTTE movement due to his scars. His father was also accused of being LTTE and was badly beaten.

   - The family left the camp after about one year and returned to their home village. Upon returning home, the applicant was questioned many times at the local army camp and in the street, by the army and CID. Questioning would occur over a few hours or up to a day or so. The officers would question him about the location of weapons and mistreat him verbally and physically.

   - After finishing school in December 2010, the applicant stayed at different residences to avoid further questioning by the army and CID, and would visit his grandmother and aunty in Jaffna, staying about a week at a time.

   - In about June 2012, the applicant failed to attend the camp a few times for questioning when he had been directed to do so. Army/CID officers came to his home and told his parents they were very angry he had not complied with their direction and wanted to see him immediately.

   - The applicant did not return home but stayed with friends and family. The authorities came to his home and took his photo away with them.

   - On 20 August 2012, he departed Sri Lanka illegally by boat and travelled to Australia.

   - He fears harm because he has resided abroad for a prolonged period of time and has claimed asylum while abroad.

   - Recently (about January 2016) three of his friends went missing.

   - During the visa interview, the applicant claimed that since being in Australia, the authorities have been looking for him as recently as July 2016, came to his home, took his National Identification Card, and have taken his father to question him about the applicant’s whereabouts. He also claimed that he received the scar on his chest from the army mistreating him and that until he came to Australia he was signing in at the local police station every day as well as being requested to report to the army camp by the CID.

   - Following the visa interview, the applicant’s representative forwarded to the delegate submissions on the applicant’s behalf which included a claim that while reporting to the authorities, the applicant was sexually abused and that on return to Sri Lanka, the authorities would accuse him of being a spy and punish him accordingly.”

2. Following his arrival in Australia, the Applicant was invited to attend an interview on 27 July 2016, for the purposes of discussing his visa application and claims that he was a person in respect of whom Australia had protection obligations. His lawyers thereafter provided a submission to the Department of Immigration and Border Protection (‘the Department’) in support of his application for the visa, that submission being dated 5 September 2016.

3. On 6 December 2016, the delegate provided notification to the Applicant of a refusal of his application for the visa. Attached to that notification was the decision record of the delegate. In summary, the delegate accepted that the Applicant was questioned by the authorities about potential links to the LTTE at times in the years 2009 to 2012, but did not accept that the Applicant was of significant interest to the authorities at any time nor that he was of interest at the time he departed Sri Lanka in 2012 or that he continues to be of interest. Nor did the delegate accept that the Applicant was pursued for having ties to the LTTE or for any other reason, nor that the Applicant was required to report to the authorities on a daily basis.

4. The delegate considered that the Applicant had:-

   “…embellished the extent to which he was of interest to the authorities and the level of interaction he had with the authorities.”[1]

   [1] Court Book, 117.

5. The delegate, in reaching his decision, considered various country information demonstrating the improved economic and security situation for Tamils in Sri Lanka.

6. Following the delegate’s refusal of the visa, the decision was referred to the IAA for review.

The IAA

1. As set out in paragraph three of the Decision Record, the IAA had regard to material referred to it by the Secretary under s.473CB of the Migration Act 1958 (Cth) (‘the Act’). In paragraph five of the Decision Record, the IAA noted that on 29 December 2016, the Applicant’s representative forwarded to the IAA a submission containing argument about the basis of the delegate’s findings and decision. The IAA considered that the submission contained material already before it and did not consider it to be new information as defined by s.473DC(1) of the Act.

2. The IAA also noted, in paragraph six of the Decision Record, that on 24 January 2017 the Department of Foreign Affairs and Trade (‘DFAT’) published an updated country information report on Sri Lanka. Relevantly to its decision, the IAA noted that the report provided information about the position of Tamils, persons perceived to have connections to the LTTE, persons who departed Sri Lanka illegally, and returning asylum seekers. The IAA said of this country information:-

   “I consider this report may be relevant to assessing the application, was not before the delegate and constitutes new information. As the report was published after the delegate’s decision and updates an earlier DFAT report on Sri Lanka published on 18 December 2015, I am satisfied there are exceptional circumstances to justify considering the new information.”

Findings

1. The IAA made relevant findings which are accurately set out in the First Respondent’s written submissions, and adopted below:-

   a)it was plausible that the Applicant had been “questioned on three to four occasions over the course of 12 months while he was at the [Kathikarma army] camp”; [2]

   b)“the applicant’s release on multiple occasions [by the authorities] without arrest, charge, imprisonment or rehabilitation indicates the army did not consider he held a profile of being involved with or supporting the LTTE, even in a minor capacity”; [3]

   c)it was not satisfied that “there was a real chance the applicant would be imputed with LTTE involvement on the basis of his connection to his father”; [4]

   d)it was not satisfied that the Applicant “was being targeted in the local CID or army because he was considered to be involved with the LTTE, notwithstanding [his] profile as a young, single, male Tamil from Mullaitivu”; [5]

   e)“he was not considered to hold a profile of LTTE involvement with the local authorities, or otherwise [to] be of interest to them”; [6]

   f)it considered “his claim that he was required to report daily to the police station…to be a recent invention to embellish his claims for protection.”; [7]

   g)concerning a late claim of sexual abuse made to the delegate, it considered “they are also recent inventions by the applicant to bolster his case”; [8]

   h)it was “not satisfied the applicant was of any adverse interest to the authorities, including the army and CID, in the months leading up to his departure from Sri Lanka.”; [9]

   i)he did not consider “the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to the authorities for any reason” [10]; and

   j)“[n]oting the applicant’s history and profile, and having regard to the country information about the political and security situation in Sri Lanka, I am not satisfied that he faces a real chance of serious harm now or in the reasonably foreseeable future.” [11]

   [2] Decision Record, 16.

   [3] Decision Record, 17.

   [4] Decision Record, 18.

   [5] Decision Record, 21.

   [6] Decision Record, 22.

   [7] Decision Record, 23.

   [8] Decision Record, 24.

   [9] Decision Record, 25.

   [10] Decision Record, 30.

   [11] Decision Record, 43.

2. The IAA consistently determined that the Applicant would suffer no persecutory harm in the reasonably foreseeable future. It said in paragraph 30 of the Decision Record the following:-

   “For reasons already stated, I do not consider the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to the authorities for any reason. For reasons also stated previously, I also do not accept that the applicant’s scarring would give rise to a real chance that he would be harmed by the authorities. Given the applicant’s profile, the country information about the change in Sri Lanka’s political and security landscape, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities, including the local CID and army, on return to Sri Lanka.”

Consideration of Grounds 5(a), 6(a) and 7(a)

1. These grounds really concern illogicality or unreasonableness rather than ground 7(a) being described as a ‘natural justice’ ground. In respect of these grounds, the Applicant submits the IAA behaved unreasonably by not exercising its power under s.473DC of the Act to invite the Applicant to an interview.

2. Section 473DC of the Act is as follows:-

   “473DC  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.”

3. Section 473DD of the Act is as follows:-

   “473DD  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.”

4. The Applicant relies, principally, on the fact that the IAA made adverse credibility findings and the “significant interval” between the interview by the delegate and the decision of the IAA.

5. These grounds are to be understood within the statutory meaning, which includes that the review in the ordinary course is to be conducted on the papers. In DGZ16 v the Minister for Immigration and Border Protection [2018] FCAFC 12, the Full Court of the Federal Court (Reeves, Robertson and Rangiah JJ) observed, in a case in which the IAA had made adverse credit findings against the Applicant, that, relevantly:-

   “69.…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.

   …

   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.”

1. Similarly, as submitted by the First Respondent, in DBE16 v the Minister for Immigration and Border Protection [2017] FCA 942 at [40] to [41] and [66], Barker J dismissed a ground alleging that, as the Applicant’s credibility was an “important factor” in the IAA’s review, jurisdictional error resulted from the IAA’s not having invited the Applicant to an oral interview. He relevantly observed:-

   “The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.” [12]

   [12] DBE16 v the Minister for Immigration and Border Protection (2017) FCA 942, 61.

2. No oral interview was ever sought by the Applicant in his submissions to the IAA. Regardless, there was nothing in the IAA’s refusal to accept some of the Applicant’s claims which required the IAA to conduct an oral interview with the Applicant as is clearly set out in the above authorities.

3. The time that elapsed between the decision of the delegate and that of the IAA is immaterial.

4. No jurisdictional error attends the Decision Record on the basis of these grounds.

Consideration of Grounds 2, 3 and 5(b)

1. By these grounds the Applicant submits the IAA failed to “consider the claims made by the Applicant” and details various particulars. In essence, the Applicant puts the grounds on the basis that the IAA failed to consider cumulatively two factors:-

   a)the Applicant’s claim that he was suspected of involvement with the LTTE because he was the only male child in his family; and

   b)the Applicant’s claim concerning repeated questioning about the LTTE and mistreatment.

2. The Applicant concedes that both such claims were noted by the IAA in its reasons. Further, both claims were expressly disposed of in paragraph 21 of the Decision Record wherein the IAA stated as follows:-

   “Given the applicant’s testimony and country information about the treatment of Tamils during this period, I accept that he was harassed, questioned and possibly mistreated by the local security forces. However, having regard to the circumstances of his questioning (occurring in the street or on occasions when he was able attend of his own volition), that the treatment was similar to that being experienced by other Tamil males in his village and that the applicant being released after each encounter to return home, I am not satisfied that the applicant was being targeted by the local CID or army because he was considered to be involved with the LTTE notwithstanding his scarring and profile as a young, single, male Tamil from Mullaitivu. Rather, the evidence indicates the applicant was experiencing harassment and questioning from the local security forces prevalent at the time and directed at Tamil males generally.”

3. The IAA found that the Applicant and his family experienced displacement and hardship, spending some time during 2009 and 2010 at an army-controlled camp in Vavuniya. [13] The IAA also found, in paragraph 16 of the Decision Record, that it considered it plausible the Applicant was questioned on three to four occasions over the course of 12 months while he was at the camp. The IAA noted, in paragraph 20 of the Decision Record, that by inference, in 2010 on the Applicant’s return to his home village, he was one of the Tamil males in the area who were having problems with the CID and army. When asked by the delegate, was the Applicant being targeted by the CID and army more than others in the village, the Applicant responded by saying that all of the Tamil males in the area were having problems with the CID and army.

   [13] Decision Record, 13.

4. The IAA noted that the Applicant had indicated as part of his written claims that at the conclusion of his schooling in December 2010, he decided to reside in different places to avoid harassment and questioning by the local army and CID. He would often travel to Jaffna. The IAA considered that:-

   “…the applicant’s continued work and residence in his village with intermittent visits to Jaffna without any adverse encounters with the local army/CID, supports my finding that he was not considered to hold a profile of LTTE involvement with the local authorities, or otherwise to be of interest to them. I do not accept that he visited his relatives in Jaffna in order to escape questioning by the army and CID in his village.” [14]

   [14] Decision Record, 22.

5. In the Decision Record, the IAA addressed the improved situation for Tamils in Sri Lanka since the Applicant’s departure from Sri Lanka in 2012, saying as follows:-

   “27. I accept that given the applicant’s prior experience of detention and questioning by authorities, he is concerned about future treatment by the CID and the army should he return to Sri Lanka. During the visa interview, the delegate raised with the applicant the impact of the passage of time since the applicant’s departure in 2012. Recent reports of country information do not support a conclusion that Tamils, including young Tamil men from the Northern Province, are being systematically targeted and subjected to serious harm because of their race and/or area of origin. The United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka issued in 2012, states that in its opinion, originating from an area previously controlled by the LTTE does not of itself result in the need for international refugee protection.

   28. The law in Sri Lanka prohibits discrimination based on race, sex, gender, disability, language or social status. I note that the applicant completed secondary schooling in Oddusuddan, despite the disruption to his studies caused by displacement. Following the completion of his studies, the applicant was employed doing farm work near his village up until the time he departed Sri Lanka. Since being in Australia, he has been employed in food preparation for Dosa Plaza. I note that on entry to Australia, the applicant claimed part of his reasons for leaving Sri Lanka was because he could not work and it was a struggle. Given his work experiences in Sri Lanka and Australia, I consider he has demonstrated the capacity to be flexible in finding employment. Having regard to his education, work experience and personal attributes, I am not satisfied the applicant would not be able to earn an income on his return to Sri Lanka, such that he could not subsist.

   29. I note that the delegate, having viewed the applicant’s scars to his chest and leg during the visa interview, assessed them as not being significant or obvious. There is no information before me to contradict the delegate’s assessment of how the applicant’s scars appear. Country information before the delegate suggests that scarring is not of itself, considered to put a person at risk of harm unless a person is likely to be detained and stripped during interrogation for other reasons. Having regard to country information, the applicant’s profile with the authorities following numerous encounters and the delegate’s assessment of the scars, I am not satisfied the applicant would attract the adverse interest of the authorities on the basis of the scarring to his chest and leg.

   30. For reasons already stated, I do not consider the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to the authorities for any reason. For reasons also stated previously, I also do not accept that the applicant’s scarring would give rise to a real chance that he would be harmed by the authorities. Given the applicant’s profile, the country information about the change in Sri Lanka’s political and security landscape, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities, including the local CID and army, on return to Sri Lanka.”

6. The IAA’s reasons should fairly be read as a whole. The Decision Record, in that context does make, as submitted by the First Respondent “repeated and emphatic findings to the effect the applicant was not of continuing interest to the authorities.”

7. It cannot be found that the IAA failed to consider the claims made by the Applicant.

8. Nor can it be established that the IAA’s finding (as referred to in paragraph 23 above), that the Applicant had not been targeted for Convention reasons was unreasonable or irrational as submitted by the Applicant. I agree with the First Respondent that there was nothing inconsistent, nor irrational or unreasonable, in the IAA’s finding that a person might be repeatedly questioned, but that there might be no necessary Convention reason motivating such behaviour. Reasonable minds might draw different inferences, all rational and available on the evidence, as submitted by the First Respondent.

Consideration of Ground 6(b)

1. The IAA noted in paragraphs 48 and 49 of the Decision Record the following:- 

   “48. For the reasons already stated, I have found that there is not a real chance the applicant will face serious harm from the Sri Lankan authorities, including the local CID or army, on return to Sri Lanka due to his marital status, age, Tamil ethnicity and/or because he originates from the Northern Province, due to his scarring for imputed LTTE involvement. I have also found there is not a real chance he would be harmed by the authorities due to his connection with his father,that three friends may have gone missing in 2016, or for being a returned asylum seeker who departed Sri Lanka illegally in 2012.

   49. As ‘real chance’ and ‘real risk’ involve the same standard, it follows that based on the same information, and for the reasons stated above, I am also satisfied there is no real risk of significant harm on these bases if returned to Sri Lanka.”

2. There was clear evidence before the IAA and before the delegate that the security and economic situation for Tamils in Sri Lanka had changed markedly since the Applicant’s departure from the country in 2012. It was in the context of that country information that the claims of past questioning of the Applicant needed to be considered. The IAA did so in paragraph 27 (referred to in paragraph 26 above) of the Decision Record.

3. The IAA entered into no error in relation to the applicable test for future harm. It also considered the changed country information in assessing that future risk of harm. The findings of the IAA of past questioning of the Applicant were consistent with a finding that the Applicant is no longer, and for the reasonably foreseeable future, of any interest to the authorities.

Ground Eight

1. The Applicant alleges that the IAA failed to consider mandatory relevant considerations being claims of the Applicant and their component integers. A failure to consider a claim or component integer is a relevant jurisdictional error. The ground stated in 8(a) is that the IAA did not pay sufficient regard to country information submitted by the Applicant concerned human rights issues and harm of asylum seekers on return from abroad.

2. The IAA stated, in paragraph three of the Decision Record, it had regard to all the material referred by the Secretary, which included the material referred to by the Applicant.

3. It is clear the IAA had before it a very recent DFAT country information report on Sri Lanka. The Court agrees with the submission of the First Respondent that the IAA was perfectly entitled to have regard to that more recent information when making observations about the improved situation in Sri Lanka, and when making its detailed findings on the apprehended treatment of returnees. That the DFAT report was preferred to other country information is unremarkable and no jurisdictional error is shown.

4. By ground 8(b) the Applicant alleges that the IAA failed properly to assess the risk to the Applicant on the grounds that he was an only son. This ground cannot succeed. This claim was noted and dealt with by the IAA at paragraphs 20 to 21 of the Decision Record.

5. Ground 8(c) also cannot succeed. The repeated and emphatic findings of the IAA were that the Applicant was of no interest to the authorities, and as submitted by the First Respondent, the IAA goes so far as to say that the Applicant is not “considered to be a person of interest to the authorities for any reason”. 

6. No jurisdictional error attends the decision of the IAA. The amended application for judicial review shall be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 8 March 2019