DVH18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 194
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 194
File number: MLG 2180 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 4 March 2024 Catchwords: MIGRATION – Application to review decision of the Immigration Assessment Authority (‘Authority’) – whether decision of the Authority not to admit new information was unreasonable or illogical – HELD that Authority did not act unreasonably or illogically. Legislation: Migration Act 1958 (Cth) s 473DD. Cases cited: ATC15 v Minister for Immigration and Border Protection [2016] FCA 1420
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BAX15 v Minister for Immigration and Border Protection [2016] FCA 491
CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203
CRU18 v Minister for Home Affairs (2020) 277 FCR 493
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542
Singh v Minister for Home Affairs [2020] FCAFC 7
Vo v Minister for Home Affairs [2019] FCAFC 108Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 23 January 2024 Place: Melbourne Counsel for the Applicant: Ms Zhou Solicitor for the Applicant: Holding Redlich Counsel for the Respondents: Ms Chan Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2180 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVH18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs.
2.The Application dated 25 July 2018, as amended 11 January 2024, be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 28 June 2018. In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a protection (subclass 790) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The background to the matter was conveniently summarised in the Applicant’s outline of submissions at paragraphs [3]-[10]. The Minister took no issue with that summary, and it is convenient to reproduce it below:
3.The applicant is a Sri Lankan national, born in India on 29 April 2000. He is of Tamil ethnicity. Originally of Hindu faith, the applicant has converted to Islam. He arrived in Australia on 9 June 2013 by boat aged 13.
4.On 16 October 2015, the applicant lodged an application for a Safe Haven Enterprise Visa (Class XE) subclass 790 (‘Visa’). His claims are summarised as follows:
a)The applicant left Sri Lanka when he was 12 years old and did not know much about what happened to his family.
b)He lived in Chilaw as the only Tamil and Hindu people on their street.
c)His father ran a number of businesses, was known to be a successful businessman and targeted for extortion by local Singhalese and the police.
d)One day in April 2013, while walking home after school, the applicant encountered an attempted kidnapping, which was the catalyst for his departure from Sri Lanka.
e)Due to his young age at the time, the applicant’s parents shielded him, and he did not have many concrete memories of what happened to his family.
f)He recalls two past incidents. One was that when he was around 11-12 years old, the police came to his house. There was shouting in Singhalese and the police searched every room. The applicant’s mother told him to go to class. The police hit him on the head and opened his bag. After he returned from class, his parents told him the police were looking for money and not to worry.
g)The second incident occurred in 2012, when the applicant’s father attended protests against increasing petrol prices. The applicant’s brother later told him that their father saw a protestor killed, and that the CID visited their house and intimidated their father not to talk about the protestor being killed. The applicant believes this was what the police were doing when they came to the house shortly before he left Sri Lanka.
h)Since he has been in Australia, the applicant’s brother has told him about other incidents, which caused his siblings also to flee Sri Lanka. These include that their maternal uncle Nanda Silva was murdered in around 2009 and that one of the relatives was kidnapped in a white van. Further, his father was suspected of assisting the LTTE as he used to drive between Chilaw and Jaffna. As a result, he was detained for one or two months and was badly mistreated.
i)The applicant claims that he will be subjected to prolonged detention due to his father’s arrest and prior charge on suspicion of assisting the LTTE.
j)When the applicant’s sister voluntarily returned to Sri Lanka, she was able to leave the airport, but their mother was taken away and detained for three months. This became an ongoing court case. Prolonged detention at his relatively young age would increase his vulnerability to being physically or sexually abused.
k)When the applicant’s brother, Saranraj, returned to Sri Lanka, he was questioned by police and had to pay them money to be released.
l)The applicant also fears Sri Lankan authorities, due to him being a Tamil from the North, suspicions surrounding his family, family background and financial status, and the fact that several members of his family have fled and come to Australia.
5.On 8 February 2016, the applicant’s migration agent emailed the department a copy of a decision by the Refugee Review Tribunal (‘RRT’) dated 4 November 2013, which found that the applicant’s older brother satisfies the criterion set out in s 36(2)(a) and was a person in respect of whom Australia has protection obligations.
6.On 19 December 2016, the applicant’s Visa application was refused.
7.On 11 January 2017, the decision was referred to the IAA for review.
8.On 1 and 4 February 2017 respectively, the applicant’s migration agent provided new information to the IAA (collectively, ‘New Information’), including:
a)a certificate (‘Custody Certificate’) showing that the applicant’s mother was in custody at Welikada Prison from 27 March 2014 to 7 May 2014. This was said to be due to his mother organising his sister’s illegal departure from Sri Lanka; and
b)a transcript of a police report (‘Police Report) dated around 3 April 2014 on the charges faced by the Applicant’s mother for sending his sister to Australia illegally.
9.On 27 February 2017, the IAA refused to grant the Visa. This decision was subsequently quashed by this Court and remitted back to the IAA by consent, on the basis that the Secretary had failed to refer to the IAA the RRT decision concerning the applicant’s brother, which was before the delegate.
10.On 28 June 2018, the IAA again affirmed the decision on remittal and refused to grant the Visa. This is the present decision under review.
(footnotes omitted)
At the hearing before me, the Applicant relied on his Amended Application filed 11 January 2024 (‘Application’), his written outline of submissions and an affidavit of his solicitor, Ms Hannah, affirmed 9 January 2024. The Minister relied on his written outline of submissions and an affidavit of his solicitor, Ms Richardson, affirmed 16 January 2024. The Minister also prepared an Amended Court Book which was referred to by both parties. I was provided with a joint list of authorities.
THE APPLICATION
The Application, as filed, contained two Grounds of Review. At the hearing, the Applicant abandoned the second Ground of Review. Accordingly, the single Ground of Review before me is as follows:
1.The decision of the second respondent (IAA) not to consider new information provided by the applicant pursuant to s 473DD of the Migration Act 1958 (‘the Act’) was unreasonable, or in the alternative, illogical.
PARTICULARS
a. The applicant provided to the IAA new information (‘New Information’) concerning the detention of his mother on charges related to his sister’s departure from Sri Lanka.
b. The New Information comprised of a certificate (‘Custody Certificate’) showing that the applicant’s mother was in custody in Sri Lanka from 27 March 2014 to 7 May 2014, and a transcript of a police report (‘Police Report) dated around 3 April 2014 on the charges faced by the Applicant’s mother for sending his sister to Australia illegally.
c. The IAA found, pursuant to s 473DD(b)(ii), that the information was not credible and that there were no exceptional circumstances to justify considering the information (s.473DD(a)).
d. These findings by the IAA were legally unreasonable or illogical.
It is not contended that the Authority misunderstood or misconstrued the requirements of section 473DD of the Migration Act 1958 (Cth) (‘Act’) as explained by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [6]-[12] (Kiefel CJ, Gageler, Keane and Gordon JJ). Rather, the focus of the challenge by the Applicant is that the Authority acted unreasonably or illogically by not considering the New Information provided to it by the Applicant. Unreasonableness or illogicality are terms that are not interchangeable: see, for example, EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 at [84], [85]; Singh v Minister for Home Affairs [2020] FCAFC 7 at [43]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [68]-[76]. What is unreasonable is to be determined by principles that are well established and the bar is a high one.
The Authority dealt with the New Information provided by the Applicant in its reasons in the following manner:
10.I do not accept the applicant could not have provided the information previously. The applicant was in regular frequent contact with his family. He was well aware of the importance of providing all his information as this had been discussed with him and informed in writing. The applicant was also asked about any documentation he had to corroborate his claims. His representative provided some documentation which was from his family, including a 2009 human rights commission complaint by his mother. I find it difficult to believe that he would not have been aware of the 2014 police documentation for his mother as the issue of his mother’s detention was raised by him in his statement. While the applicant was a minor, he had the assistance of legal representation with his application and at the interview. Further, post interview submissions were provided by his representative.
11.Further, I am not satisfied the documentation is credible information. Firstly it relates to an investigation under the Criminal Code but then refers to an offence under the Immigration and Emigration Act. Further, while the court document refers to the applicant’s mother, the document continues to refer to ‘a girl’, rather than provide the name of the ‘girl’ or the sister’s name, which is odd, given that would be the main part of the evidence. For instance, it states, “Therefore, I am investigating the matter of this girl who was taken to Australia illegally”. Further, the custody document is oddly written. For instance, it is headed, “for those who need the information”. The period of detention referred to in the custody document is also inconsistent with the applicant’s claims the mother was detained for 3 months. Secondly, I do not accept as credible that the Australian High commission made a complaint to the Sri Lankan child protection authority about a girl being sent to Australia by boat. It is not consistent with country information or with the role or interest of the Australian High Commission. It is just not credible. Thirdly, the late provision of the documents leads me to doubt the genuineness of the document. The applicant was well aware of the issue and was asked about documentation. The applicant’s representative provided 2009 documentation in relation to a complaint by the applicant’s mother. It is difficult to believe that the applicant would not have or be aware of 2014 documentation about his mother’s detention. I am not satisfied as s473DD (b).
12.I am also not satisfied there are exceptional circumstances to justify considering the information. In addition, I do not accept the applicant’s age or understanding amounts to exceptional circumstances as he had legal representation during the process. Further, it was evident he understood the importance of documents as some others were provided. Further, it was evident at interview that he had no difficulty understanding what was required or presenting his case.
The central (but not sole) focus of the Applicant’s submissions was the finding by the Authority that the New Information was not credible. The Applicant contended, among other things, that:
(a)the reasoning of the Authority that the Police Report was not credible because it referred to two different Sri Lankan statutes was unreasonable or illogical. He contended it is not unusual for criminal procedure to be dealt with in separate legislation to substantive criminal offences;
(b)it is not clear why the Authority found it ‘odd’ that the Applicant’s sister was referred to as ‘a girl’ rather than by the name. In relying on such a trivial detail to reject the entirety of the evidence, the Applicant contends the Authority acted unreasonably: see Vo v Minister for Home Affairs [2019] FCAFC 108 at [43];
(c)similarly, the finding by the Authority that the Custody Certificate was ‘oddly written’ is evidence of the Authority focusing on a triviality that lacks any intelligible justification when the document is considered as a whole;
(d)the finding by the Authority of an inconsistency between the Custody Certificate and the Applicant’s claim insofar as those documents deal with the period of detention of the Applicant’s mother is again evidence of the Authority relying on a minor discrepancy to reach an adverse credibility finding and is therefore unreasonable or illogical;
(e)the finding by the Authority that the reference in the Police Report to a complaint by the Australian High Commission about a girl being sent to Australia by boat was inconsistent with Country Information and could not have been logically or reasonably reached given the Country Information before the Authority was silent on the role of the Australian High Commission; and
(f)it is unclear why the late provision of documents would make it more likely that a document is not authentic, particularly where there is a specific provision in the Act that deals with the provision of late information.
The Applicant further submitted that given that the reasoning of the Authority in respect of whether the information was credible was infected by unreasonableness, the conclusion by the Authority that there were no exceptional circumstances was also infected by unreasonableness.
Finally, the Applicant submitted that the reasons of the Authority lacked intelligible justification. He claimed the Authority relied on minor matters in order to reject all of the New Information. It was further contended that in doing so, the Authority went beyond conducting a preliminary assessment about whether the information was capable of being believed, and instead embarked upon the substantive exercise of determining whether the information was true. In advancing these submissions, the Applicant referred to the decision of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (‘CSR16’) at [41] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (‘BTW17’) at [68]-[69], [73].
It is convenient to consider first the Applicant’s contention that the Authority overstepped the mark and went beyond conducting a preliminary assessment when determining whether the New Information was capable of being believed. I accept that in assessing whether the New Information was ‘credible’, the Authority was required only to determine whether the New Information was capable of being accepted as truthful, as explained by Bromberg J in CSR16 at [41]-[42].
I am unable to accept the Applicant’s submission that the Authority did not approach this case consistently with the principles articulated in CSR16. I find the Authority approached the matter consistently with what is required by CSR16. The Applicant in advancing this submission pointed to the focus by the Authority on the inconsistencies it had identified between the New Information and other information. The Applicant accepted, however, that inconsistencies could be taken into account by the Authority when it came to determining what is credible. I also do not accept that the proper characterisation of paragraph [11] of the reasons of the Authority is that it entered the deliberative stage of its review, and determined whether the New Information was true. The Authority on no less than three occasions in that paragraph in discussing the evidence refers simply to the New Information as not being credible, and makes no statement or finding as to whether the New Information is true.
Perhaps, the closest the Authority gets in paragraph [11] to crossing the line established in CSR16 is its statement that it doubts the ‘genuineness’ of the New Information because it was provided late. On balance, however, I do not consider this reference of itself to mean that paragraph [11] should be characterised as the Authority entering the deliberative stage of its review. A fair reading of paragraph [11] as a whole discloses the Authority was concerned to confine itself to the question of whether the New Information was credible, in the sense of it being capable of being believed. Moreover, I note that the Authority’s reference to the genuineness of the documents in this case bears a resemblance to what occurred in BTW17. In BTW17, Mortimer and Jackson JJ upheld an argument that ‘the finding that the 2015 newspaper article was not genuine was a finding that the document is not capable of being believed’. In that sense, the facts in BTW17 are closer to this case than those in CSR16, where Bromberg J concluded that the Authority had wrongly entered the deliberative stage of its processes when it stated in respect to a new claim that ‘I am not satisfied that the applicant does have a genuine fear of this kind’.
I turn then to the other submissions of the Applicant.
The Authority correctly identified that there was an inconsistency between the period of the mother’s detention referred to in the Custody Certificate and what the Applicant claimed. The Applicant does not take issue with the finding of inconsistency, nor does he contend it was irrelevant for the Authority to take account of it. The weight to be given to that inconsistency was a matter for the Authority. It was open for the Authority to place weight on the inconsistency in assessing the credibility of the New Information.
The Authority correctly identified that the Applicant’s sister was not referred to by name. The Authority stated that this was ‘odd’ given that this would be the main part of the evidence. The Applicant does not submit that these matters are not rationally probative, but rather that these are minor or trivial details. I do not accept that submission. The manner of expression of a document is something that may be used to assess credibility and is not so illogical that no rational decision maker would draw that conclusion. Self-evidently, the Authority was assessing the precision or particularity of a formal investigation document. It was open to the Authority to consider those matters, and to place such weight on it as it saw fit, notwithstanding that reasonable minds might differ as to the significance of the issue identified and relied on by the Authority.
The statement by the Authority that it does not accept as credible that the Australian High Commission made a complaint to the Sri Lankan child protection authorities about a girl being sent to Australia is also not unreasonable or illogical. The Applicant complains that the Authority did not have information before it on the role of the Australian High Commission. However, two things must be noted. First, the role of the Australian High Commission is not one that requires specialist knowledge. Its role is well known. Secondly, and further, the Country Information that the Authority did have before it did not identify that the Australian High Commission had any role in reporting or complaining about this particular situation. The Country Information (which is annexed to the affidavit of Ms Richardson) at paragraphs 5.28 and 5.30 refers to ‘Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees’. It was open to the Authority to conclude that if the Australian High Commission had a role, it would have been referred to in the DFAT Report. Given the above, it was therefore open to the Authority to find it improbable that the Australian High Commission had made a complaint. There is nothing unreasonable or illogical about this.
There is then the statement by the Authority that the late provision of the documents led it to doubt the genuineness of the documents. Delay is not an irrelevant consideration: see BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 at [37]-[43] and ATC15 v Minister for Immigration and Border Protection [2016] FCA 1420 at [60] which consider delay in the context of applying for a visa. Furthermore, in reaching its conclusion, the Authority noted that the Applicant had been in regular contact with his family. The Authority noted that the Applicant had provided a 2009 complaint by his mother, and it was difficult to believe he would not have been aware of the Police Report of 2014. There is nothing illogical or irrational about the reasoning of the Authority.
Up to this point, then, the reasons of the Authority are unexceptional. There is a probative or logical basis for the findings and inferences drawn by the Authority and its ultimate conclusion that the New Information provided was not credible.
It is then necessary to consider the statements by the Authority in relation to the Sri Lankan Criminal Code and the Sri Lankan Immigration and Emigration Act. The Authority reasoned that, inter alia, the New Information was not credible because ‘it relates to an investigation under the Criminal Code but then refers to an offence under the Immigration and Emigration Act’. As noted earlier, the Applicant contends there is nothing unusual about criminal procedure being contained within one statute and substantive offences being contained within another statute. He says that the Authority’s comments are not only illogical, but are wrong. The Minister’s response to this during the hearing was that ‘even if there were a mistake a fact established… it’s a mistake of fact and it’s not jurisdictional error’. Hence, it seems the Minister accepts the Authority made a mistake of fact, but does not concede the mistake amounts to jurisdictional error.
Whether a mistake of fact is capable of giving rise to jurisdictional error is a matter that was considered by a Full Court in CRU18 v Minister for Home Affairs (2020) 277 FCR 493. At [30], the Full Court referred to the following passage from McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542 at [35]-[36]:
A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
The Full Court went on to observe at [31] that:
A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established.
In this matter, I am not persuaded that ‘more’ than the mistake of fact has been established, which is necessary to give rise to jurisdictional error. No allegation has been made that the Authority misunderstood the question it had to decide, and there is no allegation that the Authority misconstrued or misunderstood the test of credibility.
Further, and additionally, there is the question of whether the error is material. In Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at [32], Kiefel CJ, Keane and Gleeson JJ stated as follows:
[32]As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.
(footnotes omitted)
There are various matters to note on the question of whether the error of the Authority is material.
First, the Authority at [11] gave various reasons in support of its finding that the New Information was not credible. The Authority made one error amongst that array of reasons. When all of the reasons are considered, the error made by the Authority is not material. The conclusion reached by the Authority that the New Information is not credible is underpinned by the other reasons it gave.
Second, the Authority ultimately concluded that the Applicant had fabricated his claim, including claims relating to the detention of his mother. In paragraph [58] of its reasons, the Authority stated:
[58]However, I consider the applicant has fabricated this claim. His account lacks credibility. For instance he claims his mother went into the airport to pick up his sister while the father waited in the car. I consider that the father waited in the car indicates they were not fearful of any harm to the sister. If they were concerned about repercussions, charges or detention, I find it difficult to believe that the father would wait outside in the car. Further, if the mother was detained at the airport, it is not clear how the sister found the father. Further, having listened to the interview, I consider the applicant made up his account of what happened at the airport. The applicant said he had no details of what happened but then appeared to speculate and make up an account that his mother said to detain her, not her daughter. Further, if he were fearful of return on the same basis, it is odd he would not try to find out more, given it would directly affect him. I consider that he had no details of what happened and had not obtained any information is at odds with his claims for protection and indicates the applicant is not fearful in that regard and suggests the claimed events did not occur.
At least the following should be noted about what is set out above. First, it must be remembered that the Authority found the New Information was not credible, that is, it was not capable of being believed. Had it admitted the New Information and considered it at the deliberative stage, it wouldn’t have believed the information given its assessment of it. The admission of the New Information would therefore not have made a difference to the ultimate outcome. Second, it can be seen from paragraph [58] above that the conclusion that the Applicant had fabricated his claim was arrived at having regard to factors not arising from the New Information. Those other factors included the parents attending the airport to pick up the sister, the father waiting in the car for the mother, the lack of clarity about how his sister found the father if the mother was detained, and the Authority having listened to the interview and after having so listened, concluding that ‘I consider the applicant made up his account of what happened at the airport’. The absence of documents to corroborate the claims made by the Applicant was not a matter that the Authority took into account in reaching its conclusion.
There is then the question of even if the absence of corroborating documents was a factor in forming part of the overall decision by the Authority to reject the Applicant’s claim, an error made in relation to one piece of evidence means the overall conclusion has been affected by error. This is a matter that was discussed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64.
The error in question here was the mistake by the Authority in stating that the New Information ‘relates to an investigation under the Criminal Code that then refers to an offence under the Immigration and Emigration Act’. The Police Record deals with, inter alia, the detention of the Applicant’s mother. The Applicant claimed initially that the detention of his mother could cause him trauma and irreparable harm (Court Book 133). He also claimed his mother’s detention may corroborate his claim that his family was suspected of being linked to the LTTE.
The question that then arises is if the Authority accepted the New Information as being true, is there a realistic possibility that the outcome would have been different, and that the Authority would be more willing to accept that the Applicant’s family was suspected to be linked to the LTTE. In my view, the answer to this question is no when the balance of the reasons of the Authority are considered. As I have noted, the Authority rejected the Applicant’s claims for a range of reasons. The Authority rejected the Applicant’s claims that his relatives ‘were killed or disappeared or that his father was suspected LTTE or detained for any period’ (reasons at [36]). In reaching that conclusion, the Authority identified various issues with the evidence given by the Applicant, including lack of details or particulars (reasons [23]), the Applicant’s account having changed over time (reasons at [24]), inconsistencies in evidence given by the Applicant (reasons at [25]), concerns that the Applicant was not recounting a lived experience (reasons at [26]), inconsistencies between the Applicant’s claim and those claims advanced by his brother (reasons at [32]), and that the Applicant’s siblings had not been harmed on return to Sri Lanka (reasons at [46]). When these matters are considered, there is not any realistic possibility of the outcome being different even if the Authority made the mistake of fact discussed above in relation to the admission of New Information.
When all these matters are considered, the Ground of Review cannot be upheld. There is nothing in the reasons of the Authority that is unreasonable or illogical. The Applicant may not like the outcome or the reasons given by the Authority, but that is not sufficient to give rise to jurisdictional error. For all of the above reasons, the Application must be dismissed.
The Minister sought costs in the amount of $8,371.30. The Applicant has been entirely unsuccessful. In those circumstances, I will award costs to the Minister in the amount of $8,371.30.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 4 March 2024
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