DYH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 234
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 234
File number(s): MLG 1914 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 29 March 2023 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority - where Authority found that central claim fabricated - whether Authority engaged in reasoning that was illogical or irrational – whether there was a probative basis for the Authority’s reasoning process – whether errors in the reasoning process were material – jurisdictional error established – application allowed with costs Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51
Minister v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 21 March 2023 Date of hearing: 21 March 2023 Place: Melbourne Counsel for the Applicant: Mr M. Kenneally Solicitor for the Applicant: MP Migration Law Counsel for the First Respondent:
Mr N. Dour
Solicitor for the First Respondent Mills Oakley ORDERS
MLG 1914 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
29 March 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision made by the second respondent on 14 August 2017.
2.A writ of mandamus issue requiring the second respondent to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
3.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $8,582.00.
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 SYMONS:
INTRODUCTION
By an amended application filed on 22 March 2023, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 14 August 2017. The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the visa). The Minister opposes the application. The Authority enters a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Sri Lanka who is of Tamil ethnicity and Hindu faith. He arrived in Australia on 4 November 2012 as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) (the Act).
On 28 December 2012, the applicant participated in an entry interview.
On 21 December 2015 the (then) Department of Immigration and Border Protection invited the applicant to apply for the visa (CB 18-23).
With the assistance of a registered migration agent, the applicant applied for the visa on 29 September 2016 (CB 25-80). The application was accompanied by a number of supporting documents and a statutory declaration dated 23 September 2016 in which the applicant provided an explanation for why he had left Sri Lanka and described what he feared might happen to him should he be returned to that country (CB 67-71).
The applicant explained that he left Sri Lanka because he feared harm from the Central Intelligence Department (CID), the Eeelam People’s Democratic Party (EPDP) and the Sri Lankan army and police. The Applicant claimed that these groups suspected that he was involved with the Liberation Tigers of Tamil Eelam (LTTE).
The claims were said primarily to arise in connection with a person the applicant met in 2005 known as “EJ” who assisted the applicant to obtain construction work in the Jaffna region of Sri Lanka. The applicant believed that EJ’s work for the LTTE may have identified him as a recruiter for that organisation.
The applicant described an incident that took place in September 2006 during which he was travelling on a motorbike with EJ and they were shot at and chased by the EPDP. The applicant managed to escape by running into a market, however EJ was caught and shot dead by the EPDP.
The applicant claimed that four days after this incident, he and his family fled Jaffna and went to live in Colombo. However, because he still feared for his safety from the EPDP the applicant arranged through friends to obtain a visa to work in Qatar and left for that country in April 2007.
In May 2009 the applicant returned to Sri Lanka believing it would be safe to do so. In June 2009 he and his wife returned to Jaffna to live, however by October 2009 he heard that the CID was looking for him and on six or seven occasions they had attended at his home while he was at work. The applicant was also told that the CID had spoken to his sister in law and attended at his neighbour’s house enquiring about his whereabouts. The applicant believed that the CID was looking for him due to his association with EJ and his suspected ties to the LTTE.
In November 2009 he and his family fled Jaffna and went into what the applicant described as “hiding” in his wife’s relative’s home in Vavuniya. The applicant explained that he was able to obtain work assisting a carpenter. He remained living in Vavuniya up until about May 2011 at which time he fled to another family member’s home and eventually to his brother’s residence in Kotahena, Colombo, as authorities had been asking locals about him.
The applicant claimed that within two weeks of him fleeing to his brother’s residence in Colombo, the CID attended at this residence and asked him to attend at the police station. The applicant was arrested and detained for four days during which time he was beaten and interrogated about his association with EJ and his involvement with the LTTE. Upon his release he was told to report to the police station every two days, on which occasions he was detained and beaten again.
The applicant then fled to various addresses in Galle, Matara and Gampola and then arranged through an agency for a visa to Qatar. He stayed in Qatar for several months and then returned to Sri Lanka where he stayed in Wattala while his family lived in Kotahena due to reports that the CID had attended at his home looking for him. Within two weeks of his arrival back in Sri Lanka the applicant arranged to get on a boat from Negombo to Australia and fled Sri Lanka.
On 29 March 2017, the applicant attended an interview with the assistance of an interpreter in the Tamil language (the SHEV interview).
On 19 May 2017, a delegate of the Minister refused to grant the applicant the visa (CB 94-110).
The delegate accepted the applicant’s claims as to his identity, ethnicity and religion and that he had met a man called EJ when working in Colombo whom he had followed to Jaffna in search of work. However, the delegate did not accept the applicant’s account of how EJ had been killed which he described as “unconvincing and a little fanciful” including because it lacked detail (CB 99).
The delegate did not accept that the CID was looking for the applicant or that he was of interest to the Sri Lankan authorities. Instead, the delegate found that the applicant had most likely come to Australia for economic reasons when he was unable to return to Qatar to work (CB 100).
The delegate considered the applicant’s profile (including his religion and ethnicity) against country information and found that the applicant did not face a real chance of serious harm or a real risk of significant harm for any reason and that he was not a person in respect of whom Australia has protection obligations.
On 24 May 2017 the decision of the delegate to refuse the applicant the visa was referred to the Authority for a review (CB 111–112).
On 15 June 2017, the applicant’s registered migration agent sent the Authority a written submission, a death certificate of EJ dated 27 September 2006 and a letter from “Divisional Secretariat, Karaveddy” dated 19 October 200 (which omits the last digit of the date) confirming that a person named EJ had been shot dead in September 2006 by “unknown person” (CB 122-130).
THE DECISION OF THE AUTHORITY
The Authority exercised its discretion to consider the “new information” contained in the written submission and the documents that had been provided to it by the applicant’s representative. The Authority found that there were exceptional circumstances which justified the consideration of this information, and that the information could not have been provided before the primary decision was made. This last finding in particular reflected the Authority’s view that the delegate had treated the applicant’s attempts to provide these documents to him “with disdain” (CB 136, [6]).
The Authority considered the applicant’s claims for protection having first identified them by reference to the applicant’s statutory declaration, statements made during the entry interview, and information provided by the applicant during the SHEV interview.
The Authority did not accept that EJ had been shot dead by members of the EPDP on 13 September 2006.
The Authority identified three reasons for doing so.
The first reason was that the documents provided by the applicant to support his claims, being the letter from the Divisional Secretary and the death certificate, specified inconsistent dates as to the date of EJ’s death; the first recorded 9 September 2006 and the second, 13 September 2006. The Authority placed no weight on these documents because of this inconsistency and having regard to DFAT country information attesting to the prevalence of document fraud in Sri Lanka.
The second reason reflected the Authority’s finding that the applicant’s account as to how the killing of EJ had occurred was “farfetched”. The Authority’s reasons directed at this conclusion appear at [20] (CB 139). Given their significance to the applicant’s judicial review application, it is necessary to set them out in full.
[20]Secondly, I found the applicant’s account as to how the killing occurred to be farfetched. The applicant stated that EJ ran into a house and was shot. In order for EJ to have run into a house, he must have run through an open or at least unlocked door, which implies the house was occupied at the time. This is supported by the applicant’s statement at the SHEV interview that people were living in the house. While it is not impossible, it seems to me to be highly unusual that a shooting of this nature would have taken place in an occupied house, such that those occupants could have potentially identified the assailants. The applicant’s submissions to the IAA state that “[t]he EPDP members were well aware that the applicant had noticed them”, which is a comment which would appear to be equally applicable to the house occupants. Given that the shooting occurred in their home, I would have expected the house occupants to have been equally at risk of harm from the EPDP on the applicant’s reasoning. The applicant made no claims that the house occupants were harmed by the assailants.
The third reason given appeared at [21] (CB 139). It too is central to the applicant’s review application. It states:
[21]Thirdly, the submissions to the IAA state that the applicant assisted with the funeral of EJ. I find it implausible that the applicant, having been targeted along with EJ, would then play a role in EJ’s funeral, which would have made it extremely easy for the assailants to locate him if they had a continued interest in the applicant. This is also inconsistent with the claims in the applicant’s statutory declaration that he fled Jaffna four days after the shooting, which suggests that his primary concern to avoid being located by the assailants.
The Tribunal found that, “taken together” these reasons led it to the conclusion that the applicant’s account of the shooting of EJ by the EPDP, and the subsequent interest of the EPDP in the applicant, was lacking in credibility ([22] CB 139).
The Authority rejected each of the applicant’s other claims directed at his interactions with authorities and did not accept that he had ever been of interest to the EPDP, the CID or any other Sri Lankan authorities. The Authority did not accept that the applicant had been detained at the end of 2006 given his failure to mention this event in his “comprehensive statutory declaration” ([23] CB 139-140). Likewise, the Authority did not accept that the applicant would have returned to Sri Lanka in May 2009 or in 2012 if he feared harm from the EPDP and/or the CID ([24]-[25] CB 140). The Authority found that the applicant had fabricated his claims in relation to EJ’s death and the subsequent CID interest to create a basis for his protection claims ([26] CB 140).
While the Authority accepted that the applicant had lived and worked in Jaffna in the construction industry and may have performed construction work for the LTTE in this context, it was not satisfied that this would be sufficient to cause the applicant to be a person of concern to the EPDP, the CID or any other Sri Lankan authorities; the work was remote in time and minor ([27] CB 140).
The Authority considered the applicant’s risk of harm based on discrimination against him as a Tamil but found, having regard to the applicant’s past history and country information that it was not satisfied that the applicant would be subjected to discrimination or economic hardship ([32]-[34] CB 141).
The Authority also rejected the applicant’s claim to apprehend harm due to his illegal departure from Sri Lanka. While the Authority accepted the factual underpinning of the claim and that the circumstances of his departure would mean he had committed an offence under the Immigrants and Emigrants Act, the Authority was satisfied that any process or penalty the applicant might face on return to Sri Lanka would not constitute persecution for the purposes of the Act ([42] CB 142).
The Authority was also not persuaded that the applicant faced a real chance of serious harm due to being a failed asylum seeker. This finding was based on country information and its operation on the Authority’s finding that the applicant was not a person of interest to Sri Lankan authorities ([44]-[45] CB 143).
The Authority found that the applicant did not meet s 36(2)(a) of the Act and, for similar reasons, reached the same conclusion with respect to the ability of the applicant to satisfy s 36(2)(aa) of the Act.
PROCEEDINGS IN THIS COURT
The applicant relies on an amended application filed on 22 March 2023, written submissions filed on 28 February 2023 and an affidavit of Maria Psihogios dated 24 February 2023 that annexed a transcript of the audio recording of the SHEV interview (TSHEV) and extracts of country information cited in the delegate’s decision. The affidavit was read without objection.
The Minister relies on written submissions filed on 14 March 2023.
The hearing of the application took place on 21 March 2023 with Mr Kenneally of counsel appearing for the applicant and Mr Dour of counsel appearing for the Minister.
The amended application identifies five grounds of alleged jurisdictional error. There is substantial overlap between four of them. I have found error in the decision of the Authority of the kind identified by ground one. Accordingly, the balance of these reasons is directed at this ground.
Ground one
The applicant challenges the reasoning employed by the Authority when it rejected his claim to fear harm due to the murder of EJ. The applicant characterises this reasoning – and especially what is recorded at [20] and [21] of the Authority’s decision record – as legally unreasonable, irrational and/or illogical and/or based on propositions for which there was no evidence. The detailed particulars to this ground are reproduced in Schedule 1 to these reasons.
Beginning with [20] of the Authority’s reasons, the applicant submits that the paragraph (as a whole) consists of a series of speculative findings and propositions that find no support in the evidence that was before the Authority and which led the Authority to, in effect, postulate a possible version of events against which the veracity of the applicant’s account and behaviour was assessed. As a result of this approach the Authority was diverted from engaging meaningfully with the claims advanced by the applicant which claims, beyond the matters referred or adverted to by the Authority, included that:
(a)The applicant and EJ were chased by the EPDP group while they were riding on the same motorbike on the way to the market (TSHEV p 8 lines 36-37);
(b)The applicant knew (had “contacts with”) at least one of the guys who had been chasing him (TSHEV p 9 lines 22-23); and
(c)The house in which EJ was shot was not an “abandoned house”, as people were living there. However, the applicant did not know whose house it was; it was an “unknown house” (TSHEV p 8 line 40 – p 9 line 6).
The applicant submits that the reasoning in [20] contains the following findings that suffer from the defects as described:
First, the finding that EJ “must have run through an open or at least unlocked door” and that this “implies the house was occupied at the time” was speculative in circumstances where the Authority had no evidence as to the prevalence of locking doors in Sri Lanka, or as to how EJ entered the house in which he was shot.
Second, the finding that “it seems highly unusual that a shooting of this nature would have taken place in an occupied house” was made without any basis for assuming – in the context of a culture of impunity that existed for paramilitaries – that a shooting would not occur in a home when occupants were present.
Third, the finding that “the occupants [of the home] could have potentially identified the assailants” was made in the absence of evidence as to the lay out of the house or the whereabouts of the occupants (whom the Authority assumed were home) when EJ was shot.
Fourth, the assumption by the Authority that the occupants of the house would have the same risk profile as the applicant (in terms of a reprisal from the assailants) was made in ignorance of the applicant’s evidence that he and EJ knew one of the paramilitaries and therefore the paramilitary could have identified the applicant and his evidence that the paramilitaries had been chasing him before they shot EJ.
Fifth, the comment made by the Authority that the applicant “made no claims that the house occupants were harmed by the assailants” was made in circumstances where there was no basis to assume the applicant could have given this evidence. This was because the applicant did not give evidence that he had witnessed EJ’s shooting, and the applicant said he did not know the occupants of the house. The applicant submits that while the occupants might well have been threatened or harmed (although there was no evidence before the Authority to this effect), the principal vice in the Authority’s reasoning was that the Authority assumed that the applicant would have knowledge of what occurred.
The applicant submits that this last aspect of the Authority’s reasoning is especially problematic as it was the basis upon which the Authority drew an adverse inference against the applicant and concluded that the applicant had fabricated his account of how EJ had been shot.
As to [21] of the Authority’s reasons, the applicant submits that it is apparent from what is recorded in this paragraph – the role played by the applicant in EJ’s funeral “would have made it extremely easy for the assailants to locate him” - that the Authority proceeded on the basis that the applicant had attended the funeral for EJ and that this funeral (and the applicant’s participation) had a public element to it.
The applicant submits however that there was no evidence before the Authority that the applicant had attended a funeral and that even if such an inference could be drawn, a basis for doing so was not disclosed in the Authority’s reasons. It was further submitted that even if the applicant had attended the funeral there was no evidence that it was a public event. Indeed, there was no evidence at all that illuminated the issue of where or when any funeral for EJ had occurred.
It was common ground that the applicant’s evidence concerning EJ’s funeral was limited to the statement that “[t]he applicant assisted with the funeral of [EJ] and doing all necessary paperwork for the final affairs” which appeared in the submissions provided to the Authority on 15 June 2017.
The Minister submits that the applicant’s challenge to the reasoning deployed by the Authority at [20] and [21] involves a “complex and highly strained reading” of the Authority’s reasoning and one which offends the principle articulated in Minister v Wu Shan Liang[1] that the Authority’s reasons be read holistically and not minutely and finely with an eye keenly attuned to the perception of error.
[1] (1996) 185 CLR 259.
The Minister submits that the Authority accurately recounted the applicant’s claims and assessed those claims by giving an evident and intelligible justification for why it rejected the account of EJ’s death as lacking credibility.
Addressing the specific complaints of the applicant the Minister says:
First, the Authority did not assume without evidence the “prevalence of locking doors in Sri Lanka”. The Authority found at [20] that the applicant’s evidence was that EJ ran into the house and was shot and that this evidence “implies[d] the house was occupied” because EJ had to have run through an open or unlocked door. The occupancy of the house was supported by the applicant’s evidence at the SHEV interview that people were living in the house. It was therefore open to the Authority to draw inferences of the house being occupied based on the applicant’s own evidence.
Second, the Authority did not make a finding or assume that a shooting would not occur in a home when occupants were present. Instead, the Authority reasoned “[w]hile not impossible, it seems to me to be highly unusual that a shooting of this nature would take place in an occupied home such that those occupants could potentially identify the assailants”.
Third, the Authority did not assume the occupants could have identified the assailants but reasoned of the potential for them to be witnesses to the shooting. This, it was said, exposed a rational process of deduction that fell well short of the threshold required to establish illogicality or legal unreasonableness.
Fourth, the fact that the applicant mentioned during the SHEV interview that he had previously had contact with one of the assailants did not mean that there was no basis for a logical or rational person to reason that if the occupants of the house had witnessed a murder, they would also be at risk of being targeted.
Fifth, the Authority did not unlawfully draw an adverse inference against the applicant. The Authority assessed the applicant’s own evidence of what occurred in the house and gave this account weight as it was entitled to do.
As far as the Authority’s findings in [21] are concerned, the Minister submits that there is no legal error in circumstances where the Authority adopted the language of the applicant’s submissions (“assisted”) and found, based on this evidence, that it was implausible that a fearful person would play an active role in connection with a person who had been recently pursued and shot by the EPDP.
The Minister made the further submission, which I understood to be directed at materiality, that while the applicant’s argument was focused on the reasons in [20] and [21] of the Authority’s decision, the issue of whether the applicant was at risk of harm from the EPDP, the CID or other Sri Lankan authorities because of an imputed LTTE association was in fact considered by the Authority from paragraphs [17] up to and including [26] so that any error in either one or both of paragraphs [20] or [21] was not material to the Authority’s ultimate conclusion (recorded at [26]) that the applicant had never been of interest to the EPDP, the CID or any other Sri Lankan authorities.
The Minister submitted that the Authority’s reasons for rejecting this claim reflected the culmination of its findings that it did not accept: (i) the CID attended the applicant’s house looking for him; (ii) the CID detained the applicant in 2011; (iii) the CID required the applicant to attend the police station over two days; (iv) the applicant’s account of EJ’s death; and (v) the subsequent interest in the applicant (from the CID and the EPDP). The rejection of the account of EJ’s death therefore represented just a single strand of the Authority’s dispositive reasoning.
CONSIDERATION
While I accept that the Authority’s rejection of the account of EJ’s death was one of several reasons why it ultimately rejected the Convention styled claim that the applicant apprehended relevant harm from Sri Lankan authorities, the CID and the EPDP, it was a central part of the applicant’s case. The applicant’s association with EJ and his proximity to EJ’s shooting were matters identified as giving rise to the applicant’s pro-LTTE profile. All subsequent events were identified by the applicant (on his case) as flowing from this relationship.
The Authority understood this to be so and organised its reasons in a manner that reflected the significance of the shooting claim as the first factual account to be determined. As noted above at [23], the Authority’s reasons contain the explicit statement that it did not accept that EJ was shot dead by members of the EPDP on 13 September 2006 as claimed by the applicant “for the following reasons” which reasons unambiguously were those set out in paragraphs [18] up to and including [21] and which were explicitly identified as the first, second and third reason. I am left in no doubt therefore of the significance of each of the three reasons to the Authority’s rejection of the shooting claim and the integral place of the shooting claim to the applicant’s overall case for protection. I accept that any legal deficiency in the Authority’s approach to assessing the credibility of the applicant’s account of the shooting of EJ cannot be isolated or confined and would be jurisdictional if established.
Turning then to [20] of the Authority’s reasons I consider that while reasonable minds might differ as to whether the inference that the home in which the shooting took place was occupied and the inference that EJ was able to enter the house because the doors were either open or unlocked should have been drawn, these were inferences that were, in the first case, available on the evidence before the Authority and in the second, one that reflected a logical process of deduction. The applicant had given evidence that people were living in the house in which the shooting took place (although, admittedly, his evidence did not extend to whether they were present in the house at the time of the shooting) and it was at least open to the Authority to deduce, as a matter of ordinary human experience or common sense, that EJ was able to “run” into the home through either an open or unlocked door. Neither finding, on that analysis, could be said to possess the character of illogical or irrational although I accept that there was nothing before the Authority to rationally connect the fact of the doors being open or unlocked to the occupancy of the house.
As far as the Authority expressed scepticism that the shooting of EJ would have taken place in an occupied house, I consider that this view lacked any evident probative basis. While on the one hand there is an alluring quality to the idea that this view was borne of common sense, this cannot be correct. The expression of this view (albeit tentatively) could not be based on anything more than speculation or conjecture, for it could not be said that it was made in accordance with the Authority’s personal knowledge or by reference to that which is commonly known. The primary reason for that is that there was no evidence that the Authority had any personal knowledge or familiarity with the circumstances in which “a shooting of this nature” would ordinarily be carried out by para-military organisations such as the EPDP in Sri Lanka at that time.
However, in some respects this finding side-steps the real vice of the Authority’s reasoning in [20] which was to deploy against the applicant a scenario that involved the shooting of EJ being carried out while the house was occupied and to make critical assumptions that the presence of these (unidentified) occupants had consequences about which the applicant should have possessed knowledge and in respect of which he should have made claims.
I accept in this respect that the Authority drew an adverse inference against the applicant that his failure to make any claims that the occupants of the house had suffered some form of retribution from the EPDP was material to its conclusion that the applicant’s account of the shooting had been fabricated.
However, there was simply no probative basis for the Authority’s implicit finding that the applicant was in a position to make claims that the house occupants had been harmed by the assailants. There was no evidence before the Authority that the occupants of the house had witnessed the attack, there was no evidence that the assailants would be motivated to harm them because of anything that they might have seen. There was no evidence that any occupant of the home had in fact suffered any harm. Further, there was no evidence that the applicant witnessed the shooting or its aftermath or that he had any connection with the occupants of the house; to the contrary, the applicant’s evidence was that he had run away from the house (towards the market) to escape and that four days later he had fled from Jaffna to Colombo.
I am satisfied for these reasons that the applicant has established jurisdictional error in relation to [20] of the Authority’s reasons.
I am also satisfied that a similar vice infected the process of reasoning set out in [21] of the Authority’s written statement. The Authority in that paragraph had plainly formed the view that the applicant’s involvement in the funeral of EJ had a public dimension to it. Nothing in the applicant’s account of the assistance that he provided around the funeral provided a probative basis for this conclusion. Indeed, what little he did say about this assistance tended to suggest to the contrary, given the applicant’s reference to having assisted with administrative matters (“paperwork”).
To the extent that this error is capable of being characterised as a misapprehension of evidence this does not preclude it giving rise to jurisdictional error. The law is settled that mistakes of fact are not impervious to judicial review and will give rise to jurisdictional error in circumstances including (as in this case), where the finding is illogical or without evidentiary foundation.[2]
[2] Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [63].
DISPOSITION
The applicant has enjoyed success with respect to ground one of his amended application.
It follows that I will make orders that the decision of the Authority be quashed and the matter returned to the Authority for reconsideration according to law. The Minister must pay the applicant’s costs of the application (as amended) in a fixed amount.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 29 March 2023
Schedule 1
Ground 1
a.The applicant claimed he was at risk of harm due to his association with an LTTE member EJ.
b.The applicant claimed he had experienced past harm when he and EJ were pursued by paramilitaries and EJ was shot and killed in a nearby house.
c.The applicant claimed he was at risk of harm because he witnessed the events leading up to EJ’s murder.
d. The IAA rejected the claim as a fabrication (D, [22]) as it found:
i.the applicant’s account of EJ’s murder implausible (D, [20]); and
ii.the applicant’s lawyers written IAA submissions that stated that the applicant assisted with EJ’s funeral after his death was inconsistent with the applicant’s claim that he fled
tofrom Jaffna four days after the event (D, [21].
e.The IAA’s rejection of the applicant’s claim to fear harm due to EJ’s murder is affected by jurisdictional error as the IAA’s finding at [20] was irrational, illogical and unreasonable or based on propositions that had no evidence as:
i.the IAA assumed without evidence the occupants of the house in which EJ was killed were home at the time;
ii.the IAA assumed without evidence as to the lay out of the house or location of the murder that the occupants saw the assailants;
iii.the IAA assumed without any reference to country information regarding the behaviour of paramilitaries in Sri Lanka that it would be ‘highly unusual’ for a murder to take place in an occupied house;
iv.the IAA found the occupants and applicant would be at equal risk of being targeted by the paramilitaries as witnesses of EJ’s murder, without having regard to the fact the applicant had given evidence he had previously had contact with one of the assailants; or
v.the IAA drew an adverse inference from the applicant’s failure to provide evidence that the occupants had been harmed by the paramilitaries in circumstances where there was no evidence or rational basis to assume the applicant knew the occupants of the house, or had any basis to know what had happened to them.
f.Further or alternatively to (e), the IAA’s reasoning at [20] was unreasonable or irrational at it found the applicant’s account of events implausible based on the fact people may have been in the house, the occupants may have witnessed the murder, the occupants may have been harmed by the assailant, and the applicant may have known if the occupants had been harmed.
g.Further or alternatively to (e), the IAA’s findings at [21] was irrational, illogical and unreasonable or based on
propositionsfindings of fact or assumptions as to what the applicant claimed that had no evidence or lacked a logical and probative basis being that:i.
there was no evidence and/or the IAA had no rational basis to concludethe applicant attended or claimed to attend EJ’s funeral;ii.
there was no evidenceEJ’s funeral was or the applicant claimed it was a public event;iii.the applicant had or claimed to engage in assistance in the funeral that would make him extremely easy to find;
iv.
there was no evidence EJ’s funeral was held in Colombo; and/orv.
there was no evidence thatEJ’s funeral was not held or the applicant claimed it was not held within four days of his death.
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