EEE16 v Minister for Immigration - [2019] FCCA 3710

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEE16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3710

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s reasoning was illogical – whether the IAA misunderstood the applicant’s claims – ground not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DB, 473DC, 473DD, 476, pt.7, pt.7AA

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174;

(2016) 250 FCR 109; (2016) 154 ALD 221

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2;

(2018) 258 FCR 175; (2018) 353 ALR 641; (2018) 74 AAR 121;

(2018) 353 ALD 641

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

(1996) 185 CLR 259

Applicant:

EEE16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3765 of 2016

Judgment of:

Judge Nicholls

Hearing date:

6 November 2019 and 20 November 2019

Date of Last Submission:

20 November 2019

Delivered at:

Sydney

Delivered on:

19 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr G. Foster

Solicitors for the Applicant:

Sentil Solicitor & Barrister

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

DLA Piper

ORDERS

The application made on 30 December 2016, and as further amended, is dismissed.
Order 2 made on 6 November 2019 is vacated.
The applicant pay the first respondent’s costs set in the amount of $10,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3765 of 2016

EEE16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 December 2016, amended on 18 July 2017 and further amended on 30 October 2019 seeking review of the decision of the Immigration Assessment Authority (“the IAA”), which on 23 December 2016 affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE 1”) and the affidavit of Sivarama Krishnan Valliapan, solicitor, made on 8 October 2019, annexing a transcript of the interview between the applicant and the delegate (Transcript: “T”).

Background

The applicant is a citizen of Sri Lanka and of Tamil ethnicity. He arrived in Australia on 17 September 2012 as an unauthorised maritime arrival. He ultimately applied for a Safe Haven Entry Visa (“SHEV”) (“protection visa”), it was received by the Minister’s Department on 11 December 2015 (CB 16-CB 53). His claims were initially set out in a statutory declaration dated 10 September 2013 (CB 58–CB 61).
He claimed that in May 2011 he stood as a United National Party (“UNP”) candidate in elections. He had no prior involvement in politics. Armed men whom he believed were from the Eelam People’s Democratic Party (“EPDP”), a party opposed to his party came to his house several times looking for him.
He was not successful at the election. Other Tamil UNP candidates were targeted and killed after the election by unknown persons whom it was believed were linked to the Sri Lankan government.
He left Sri Lanka because he feared he would be harmed or killed by members of the EPDP, and the Sri Lankan army because he contested elections as an UNP candidate and, because he is Tamil. If he were to return he feared harm for the same reasons and because he claimed asylum in Australia.
The applicant was interviewed by the Minister’s delegate. His application was refused on 30 August 2016 (CB 111–CB 146). His matter was referred to the IAA on 2 September 2016 (CB 267–CB 269).

The IAA

The IAA affirmed the delegate’s decision on 23 December 2016 (CB 335 –CB 353). The Minister’s written submissions contain, in light of the evidence before the Court, a fair summary of the IAA’s reasons. There was no dispute from the applicant about this summary before the Court:
“7. The IAA first considered the applicant's submission and the DFAT reports that were provided and decided that they were not “new information” (cf s 473DC(1) of the Act) and thus considered them: (see CB 336 [4]).
8. The IAA set out the applicant’s claims at [5]. Despite some concerns arising from inconsistencies between what was said in the visa application and at the SHEV interview, the IAA was prepared to accept that the applicant was the UNP candidate in the July 2011 local government elections in Nallur, Jaffna (see [20]). However, the IAA found the applicant's evidence in relation to the speeches he made and the subsequent visits to his home from unknown men to be generalised, vague and without detail (see [29]-[30]). The IAA additionally noted inconsistencies in the applicant's evidence (see [24] - [25]) and found it to be implausible that the unknown armed men were not able to directly confront the applicant after looking for him over 13 months, particularly as the applicant remained living at the same home address (see [31]). The IAA also found the applicant's actions in remaining at the same home address to be undermining of his claim of fearing harm from people who came to his home (see [32]). The IAA accordingly did not accept that “unknown, masked armed men or armed men from the EPDP and aligned with the Sri Lankan government were searching for the applicant and intending to harm him” (see [33]). As the IAA did not accept the applicant's claims of past harm, it found the applicant's fear of harm in the future due to his UNP candidacy in 2011 to be remote and determined that the applicant did not face a real chance of serious harm from the EPDP or Sri Lankan Army or other Sri Lankan government authorities because he had stood for election (see [34]).
9. While the IAA accepted that human rights defenders and others seeking justice for atrocities that occurred during the war are at risk of harm, the IAA did not accept that the applicant was or is a human rights advocate or defender and accordingly found he would not face harm for this reason (see [35]).
10. The IAA considered the applicant's claim that he would be harmed for reason of being from Jaffna and being perceived as a LTTE member or supporter. On the evidence before it, the IAA did not accept that the applicant had been perceived to be an LTTE member or supporter and found the chance of the applicant being subjected to serious harm for this reason to be remote (see [37] - [47]).
11.The IAA considered the applicant's claim that he would be harmed for being a Tamil asylum seeker who fled Sri Lanka illegally and would be assumed to be an LTTE supporter: at [48]-[56]. The IAA accepted that the applicant would have certain checks conducted on return to Sri Lanka and would be held on remand for a short period of time: at [50]. However, the IAA also found that there was no evidence to indicate that the applicant would be unable to pay any fine or bail condition imposed in relation to the consequences of his illegal departure (see [51]). The IAA also found that country information did not support a finding that failed Tamil asylum seekers were imputed with pro-LTTE opinions merely because they were Tamil and had sought asylum (see [52]). The IAA was satisfied that the applicant would not be detained for a lengthy period of time or be subjected to serious or significant harm on returning to Sri Lanka as a failed asylum seeker (see [53]). The IAA found that the procedures under which the applicant would be dealt with and any penalties he would be subjected to would be under a law of general application and would therefore not constitute persecution (see [56]).
12. The IAA then turned to consider the complementary protection criterion and as it had found that the applicant did not face a real chance of serious harm in relation to his claims, it also found that the applicant did not face a real risk for the purposes of s 36(2)(aa). The IAA found that the procedures the applicant would go through on return to Sri Lanka would not involve significant harm to the applicant (see [62]).
13. Having found that the applicant did not meet either the refugee criteria [58] or those for complementary protection [64], the IAA affirmed the delegate’s decision.”

Before the Court

Both parties were represented by counsel at the final hearing.
By way of a further amended application the applicant presses one ground (“ground two”) with what are said in the written submissions to be seven particulars. The further amended application contains some unnumbered particulars.
The ground of the further amended application is in the following terms:
“Ground 2.
1. The IAA committed jurisdictional error by illogical reasoning process, misunderstanding the evidence, and/or by coming to the following decisions
a.   that the applicant does not meet the requirements of the definition of refugee in S 5H(1).
b.   The applicant does not meet s 36 (2)(a), And
c.    The applicant dos not meet s 36(2)(aa)
(see [58] and [64] resp.),.
which are unreasonable decisions and decisions no reasonable decisions maker would come to
Particulars:
‘Human rights advocate’
Particulars
i.The Applicant did not refer to himself as a ‘human rights advocate’ even though his agent made a similar submission.
ii.The IAA did not accept [35, 46] that the Applicant was a human rights advocate or defender.
Failure to consider UNHCR ‘political activist’ class.
Particulars
i.The IAA referred to the UNHCR classification of people who may need protection which included inter alia certain opposition politicians and political activists [44];
ii.The IAA then failed to consider whether or not the Applicant was capable of being at risk of harm as being one of the certain opposition politicians and political activists, in accordance with the UNHCR report 2012 [see 44] or under S 5J (1) (a) of the Migration Act as having a well-founded fear of persecution because he had a political opinion. [44]

Particular 4.

Inconsistency regarding armed men

Particulars

i. At [25] the IAA referred to an inconsistency ‘regarding
whether or not UNP candidates were harmed’ when there was no such inconsistency;
ii. The IAA misunderstood that the applicant was referring to 2 different groups of people when he spoke about whether or not other UNP candidates may have been harmed: in the SHEV interview he was referring to whether the UNP candidates may have been harmed by the same men who had Declaration (Q 16) the applicant was referring to Tamils including UNP candidates who were targeted and killed by ‘unknown persons who are believed to be closely linked to the Sri Lankan government’, clearly a different group or class of persons to the small group 5-6 who visited his own house looking for him;
iii. Accordingly, since the applicant was speaking about different groups there was not inconsistency.

Particular 3.

Giving too much weigh to an inconsistency

Particulars

i. The IAA committed jurisdictional error by giving too
much weight to an ‘inconsistency regarding when the armed men first starting looking for the applicant at his home undermines the applicant’s claim that armed men came looking for him’ [24] when in the circumstances –
a. the inconsistency was minor;
b. the applicant gave an explanation in the

SHEV interview: ‘they might have done something to them in different areas which may not be aware and not able to remember but same thing would have happened to other members if they have campaigned openly about their damages to the community. I am not sure.’ (page 23) qualifying his response

Particular 5.

Misunderstanding the evidence concerning the 2011 election
Particulars
i.. The IAA committed jurisdictional error by
a. misunderstanding evidence and then making a finding based upon that misunderstanding which no reasonable decision maker would have made, when it stated:

‘The applicant was not able to correctly state who won the election where he stood as the UNP candidate’ [28].

ii.. The applicant was not ‘not able to correctly state who won the election where he stood as the UNP candidate’ and considered that various parties which stood in the election were aligned together (SHEV 18-19) such that he named the winning party as one of the aligned parties.

Particular 6.

Misunderstanding the evidence regarding election speeches

Particulars

i. The IAA committed jurisdictional error by
a. Misunderstanding the evidence and then making a finding based upon that misunderstanding which no reasonable decision maker would have made, when it did not accept ‘that the main content of [the applicant’s] speeches were accusations against the EPDP and the UPFA of perpetrating crimes against Tamils’ [29] by failing to seek information or seek to clarify these issues; or by not giving the applicant the benefit of the doubt.

Particular 7.

b. The IAA incorrectly stated ‘the applicant provided no detail about the contents of his speech or what he wanted to happen in response to the atrocities’ [29], when he did so (Pages 17, 23, 27);
c. The IAA did not seek information or seek to clarify these issues and articular did not ask the applicant to clarify or discuss ‘when or who, or how, or what he saw as the solution, or what he wanted to happen in response to the atrocities”, which failure by the applicant to provide this information or to clarify or discuss these matter were then treated as criticisms by the IAA against the applicant.
2. Accordingly the IAA committed jurisdictional errors.”
[Underlining Removed.]

The sole ground asserts jurisdictional error on the part of the IAA on the basis of illogical reasoning and a misunderstanding of the applicant’s claims.
Given the structure of the particulars to the ground, the lack of some numbering and the difficulty, (even after hearing submissions from the applicant), in linking each of the “particulars” to the ground as pleaded, I have sought to address the applicant’s ground with reference to each of the headings used in referring to the particulars in the further amended application.
In that light, there appear to be six issues raised by the applicant which he says reveal jurisdictional error by way of illogicality and/or misunderstanding of his claims.

Consideration

Given the reference to illogical reasoning in the ground and, it must be said, the applicant’s failure in submissions to satisfactorily explain this ground with reference to relevant authority, the following is of note.
In his submissions the applicant did not seek to explain his reliance on illogicality and any relationship of it, if any, to legal unreasonableness which in any event, he did not plead.
The applicant’s submissions may have benefited from considering what was said by the Full Court in ARG15v Minister for Immigration and Border Protection [2016] FCAFC 174 at [44]–[47]:
“44. It is convenient to commence the consideration of ground 1 by reference to the reasons of the majority in SZMDS. Significantly, that case related to a judicial review challenge to a decision of the Tribunal which dismissed a review application in respect of an unsuccessful application for a protection visa (which is also the case here). The state of satisfaction as expressed in ss 36 and 65 of the Migration Act was held to involve a jurisdictional fact. Justices Crennan and Bell held at [130] that illogicality or irrationality may constitute a basis for judicial review in respect of the Tribunal’s decision concerning the state of satisfaction required under s 65, but their Honours emphasised that not every lapse in logic would give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case. They added at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
... must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
45. After a detailed consideration of the Tribunal’s process of reasoning in the light of all the evidence before the Tribunal, Crennan and Bell JJ concluded at [135] that a logical or rational decision maker could have come to the same conclusion as the Tribunal:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
46. The other member of the majority in SZMDS, Heydon J, came to the same conclusion that the Tribunal’s reasoning was not illogical.
47. Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).”
Further DAO16v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]:
“30. The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”

What the applicant failed to generally appreciate in his explanation of his ground was that an assertion of “illogical reasoning” is not an opportunity to seek impermissible merits review by some other means, or simply to challenge factual findings made by a decision maker which were reasonably open on what was before them.
The “particulars” to the ground appear to be as follows.
One, what the particulars described as the “Human rights advocate” matter.
The complaint appears to be as follows. The IAA considered whether the applicant was at risk of harm because he was a “human rights advocate or defender”. It was not “correct” to “identify” (consider the applicant’s claim) in this light, because he never claimed to be such a person. The submission before the Court was that the applicant should have been “more strictly properly classified as a political activist”.
To make good this argument the applicant referred to [35] and [46] (CB 342 and CB 345) of the IAA’s reasons where it referred to the applicant, and considered his claims in the context of his being a “human rights advocate or defender”, and found he was not at likely risk of harm for this reason.
The applicant referred to various parts of the transcript of the interview with the delegate to argue that the applicant claimed to be a candidate in an election:
1. T 27, line 40 – line 46:
“VANDANA [the delegate]: Okay. I’m trying to understand the UNP’s motivation to have you as their chosen candidate a month before the elections. Can you explain why they would choose to accept you as their candidate?
THE INTERPRETER [who interpreted on behalf of the applicant]: I told them, I can go and I can give a good speech on the stage. Then I going to speak about what’s happening to our community, in front of everyone, and against another party. That’s - - -”.
2. T 29, line 1 – line 6:
“VANDANA: Nallur. So what was your level of involvement in this election?
THE INTERPRETER: So when I was in the election, so I – on the stage, I speak – I spoke very publicly and very openly against the opposition party, the previous party, who was ruling, about raping – rapes and kidnaps, killings and what have they did to the community. I clearly – gave a good speech in front of the community.”
3. T 30, line 30 –line 32:
“THE INTERPRETER: I wanted to talk about the paramilitary – the people who are doing illegal things in my area. Like, you know, rape, killings and a lot of things. I wanted to bring – get out.”
In short, the applicant argued that while he may have been an advocate for human rights, the “true” or “proper classification” based on his own evidence was that he was a political activist.
The applicant’s counsel confirmed before the Court, that the applicant did not use the term “political activist” at the interview with the delegate. However, the argument was that the IAA “clearly were aware” that he had joined a political party. In short, membership of a political party was an expression of political opinion, and the IAA should have considered the applicant’s claims in that light rather than as a human rights advocate.
In applying the same type of approach used by the applicant now as to how the IAA’s decision is to be read, I note that there is no evidence that the applicant ever claimed to have joined a political party. That is an assumption derived from his having stood as a candidate for that party. There was no evidence before the IAA to say that, for example, Australian political practices in this regard also applied to Sri Lanka.
Further, and in any event, more importantly, the evidence before the IAA reveals that the applicant’s own explanation of the claimed political activity was: T 30, line 30-line 33:
“THE INTERPRETER: I wanted to talk about the paramilitary – the people who are doing illegal things in my area. Like, you know, rape, killings and a lot of things. I wanted to bring – get out.”
What the applicant did not satisfactorily explain, or address, before the Court was the submission made before the delegate by his representative, (who acted for him in the application for the visa). The submissions made clear that the applicant’s “main fear” (T 51, line 23–line 25) in returning to Sri Lanka was not only that “he contest in the election”, but that the:
“MR SINNARAJAH [migration agent]: Main reason combine with the reason that he openly brought attention of the atrocities of the EPDP and the government forces who committed serious crime – criminal – not criminal, the human right abuses against Tamils.”
[Emphasis Added].
The term “human right abuses” is repeated at T 51, line 40 – line 41. This was explained by the representative (at T 51, line 39 – T 52, line 3):
“MR SINNARAJAH: That’s why I fear that the politically motivated killing, disappearance and – and human right abuses happen. Therefore, his main fear at the hands of the EPDP, mainly that they - whom has considered him as a political enemy in the sense that he criticised them and brought to the attention of the public their atrocities. Now, the Sir Lankan security force, they ….. still. The security force is all over the island. Now the country is unified after ….. was defeated, they can take revenge anywhere, wherever they moving or wherever he relocate in Sri Lanka. That is the reason that, therefore, the UNHCR has categorised, in 2012 or ’13, that – who is at risk profile of Tamils in Sri Lanka after the ….. was defeated. This ….. activities that ….. human rights activities is listed in the UNHCR guidelines, they might be at risk profile, therefore he fall into the category. That is my submission, madam.”
[Emphasis Added.]
In short, at the interview with the delegate the applicant’s representative made clear that the “[m]ain reason” for the applicant’s fear of harm on returning to Sri Lanka was his human rights activism.
There is no evidence before the Court, nor is there any submission to the effect, that the representative acted outside the scope of his authority to represent the applicant, or that he acted contrary to the applicant’s instructions.
The representative’s submissions were as efficacious a source of the applicant’s claims as what the applicant gave in evidence to the delegate. There was certainly nothing in those submissions to contradict what the applicant actually gave in evidence.
The delegate understood the applicant’s evidence, and the submissions made by his representative in the following way ([16] at CB 118 and [102] at CB 128):
1. “16. Therefore, the applicant’s main fear is at the hands of the EPDP, who have considered him a political enemy (in the sense that he criticised them and brought their atrocities to the attention of the public) and the Sri Lankan Security Force that still works together [with the EPDP], hence [he fears] the Security Forces all over the island [sic]. Now that the country is unified since the LTTE was defeated, they can take revenge anywhere they move or even if [the applicant] relocates within Sri Lanka [sic]. That is the reason why, in 2012 or 13, the UNHCR has categorised those with a risk profile amongst Tamils in Sri Lanka after the LTTE was defeated. This one activity, that he is a human rights’ activist is listed in the UNHCR guidelines, whereby they [human rights’ activists] might have a risk profile [sic]. Therefore the applicant falls in that category.”
2. “102. In his oral submissions at the interview, the applicant’s migration agent described the applicant’s role as UNP candidate as one who had spoken up against the EPDP in public forums during the Pradeshiya Sabha elections of 2011, aligning his actions with those of a human rights activist or a political activist who had gained political enmity on the basis of his inflammatory statements and had incited anger of the paramilitary and the government forces alike.”
Although the applicant made subsequent written submissions to the IAA (CB 281–CB 282) there was nothing from the applicant to indicate that he resiled from what his representative had told the delegate, or that the representative had not presented his claims as he would have wanted them presented. There was no dispute with the delegate’s understanding.
To the contrary a part of the subsequent submissions made specific reference to “Human Rights Framework” (CB 291–CB 292).
In all, the assertion in the particulars to the IAA having misunderstood the applicant’s claims in relation to “human rights advocate” fails at the factual level. There was nothing illogical in the IAA’s relevant understanding, or its consideration in this regard.
In relation to the argument now that the applicant claimed to fear harm because of his political opinion, as set out above, the applicant’s actual claim was that he feared harm on return to Sri Lanka because he had stood as a candidate for the UNP in one election, made speeches, lost, and UNP candidates had been subsequently targeted by the EPDP, which caused him to leave Sri Lanka.
The IAA considered this claim, as made by the applicant, at [21]–[36] of its decision record. The IAA’s findings that informed its conclusion on this claim were all reasonably open to it on what was before it, and were logically probative of the material before it.
As the Minister submitted, in the circumstances the contention that the IAA fell into error for not using such terms as “opposition, politician or political activist”, does not reveal any legal error. The IAA dealt with the claim as expressly made.
As the Minister further submits the applicant’s assertion now in his ground and submissions does not comprehend the exhortation in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 that decisions of this type are not to be read with an eye “keenly attuned to the perception of error”. In all, the first particular does not assist in making out the ground of the application.
Two, the particulars referred to “Failure to consider UNHCR ‘political activist’ class”. In submissions before the Court, the applicant’s counsel advised that he was not going to address this matter. Nor was any reference made to it in written submissions.
Absent any explanation the particular is not made out. In any event, it would appear from the particular itself, as expressed in the ground, this was simply a repetition of the second element in the particular discussed immediately above. This particular fails for the same reasons.
Three, the particulars referred to the matter of the “Inconsistency regarding armed men”. The particulars assert that at [25] of its decision record the IAA found that there was an inconsistency in the applicant’s claims in this regard, but that no inconsistency actually existed.
Paragraph 25 of the IAA’s decision is in the following terms (CB 340):
“25. The applicant claimed at the interview that he was the only gutsy person who spoke a lot about these atrocities in public. He stated that he was not sure if other UNP candidates were harmed or threatened by these men. However in his statutory declaration the applicant states: "Several innocent Tamils including those who contested as UNP candidates in elections were being targeted some were killed by unknown persons who are believed to be closely linked to the Sri Lankan government." I find that this inconsistency regarding whether or not UNP candidates were harmed is undermining of the applicant's credibility as a truthful witness.”
Having regard to the applicant’s submissions it appeared that the complaint should have been directed to [24] of the IAAs decision record (CB 340):
“24. However in his SHEV interview the applicant stated that the first time these armed men came to his home was "two or three days after the election results" came out. He stated that they came many times, every couple of days. Sometimes they came in the day and sometimes at night. Strange people came to the house and he would escape from the house. The applicant stated that they were after him because he spoke out about the EPDP being involved in the kidnappings, rapes and killings of Tamils in the community. When the inconsistency regarding when the armed men first came to his house was put to the applicant at the SHEV interview he responded that during the campaign they could not do much as they did not have power then, so they did not try hard to hurt him. However after the election they had the power and wanted to take revenge. I find that the inconsistency regarding when the armed men first starting looking for the applicant at his home undermines the applicant's claim that armed men came looking for him. I find it reasonable to expect that the applicant would remember when something as significant and as frightening as armed men searching for him at his home first occurred. I do not accept that his explanation for this inconsistency is satisfactory.”
[Error in the Original.]
From the applicant’s submissions it would appear that the complaint here is that the IAA erred in finding that the applicant had been inconsistent as to when armed men first started to look for him at his home and that this undermined his claim that such men came looking for him.
Before the Court, the applicant essentially directed attention to the IAA’s reasoning at [23]–[25] of its decision record, the argument was that the IAA noted that in his statutory declaration, which accompanied his visa application, the applicant declared that unknown armed men came to his house several times mostly at night “prior to” the election ([23] at CB 340).
The IAA then noted that in his interview with the delegate, the applicant stated that the first time these armed men came to his house was “two or three days after the election results” ([24] at CB 340).
The applicant referred to the transcript of the interview with the delegate to submit that the IAA had misunderstood that the applicant was referring to two different groups of people as between his statutory declaration and at the interview. The IAA’s misunderstanding reveals jurisdictional error because no such inconsistency existed.
To make good this argument the applicant referred to T 41, line 12– line 33:
“VANDANA: So what did they do to other UNP candidates?
THE INTERPRETER: So even my ….. area, I was the only – the gutsy person. I did – I spoke a lot of things in front of the public. I am the leading persona and the gutsy person who spoke about it.
VANDANA: So did they harm any other candidates?
THE INTERPRETER: So I am the only person. I am – I am the – I was leading. I am the person spoke in public. It very gutsy, and I brought all the bad things what they did to the public. I was – and I was the leader to – to that. Yes.
VANDANA: All right. I hear what you’re saying. What I’m asking is, “Were any other UNP candidates harmed by them?”.
THE INTERPRETER: They arrest – done something for them in different areas probably, and now I can’t remember, but same thin would have happened in other – in different areas, but I am not sure.
VANDANA: You are not sure?
THE INTERPRETER: No.”
[Emphasis Added – see below.]
It must be said, that before the Court the applicant was unable to satisfactorily explain the claimed lack of inconsistency. At one point the submissions appeared to be that what the IAA focused on was whether or not the applicant was sure if the other candidates had been harmed.
Subsequently, the focus appeared to be on the word “them” as it appears at T 41, line 25 (see above at [51]).
The submissions then sought to focus on:
1. T 36, line 1-line 2:
“THE INTERPRETER: They come, four or five people. They come with a mask. They had a mask. When they come the dogs bark, like - - -”.
2. T 36, line 19:
“THE INTERPRETER: They came many times ….. very often, they visit.”
3. T 36, line 24:
“THE INTERPRETER: So they – they – they came very often…”
4. T 36, line 34:
“THE INTERPRETER: They inquire about me...”
None of this satisfactorily explained the applicant’s argument in relation to the IAA’s finding of inconsistency as set out above.
In any event, in his statutory declaration the applicant did state that unknown armed men came to his house “[p]rior to” the election (at [9] CB 58). He believed they were from the EPDP (see at [11] CB 59). In the interview with the delegate, the applicant’s evidence was that these armed men came “The – as soon as the election result came out, after two or three days later ….. came to my house.” (See T 34 line 44–45).
What emerged more clearly from the applicant’s written submissions was that the real complaint here was not necessarily that there was no inconsistency, but the inconsistency found was “quite minor” and the IAA gave disproportionate weight to this in undermining the applicant’s credibility.
Given the applicant’s ground as pleaded, the applicant was unable to satisfactorily explain the basis for the contention that there was no inconsistency. Plainly in the statutory declaration the applicant said the masked armed men came before the election, at the interview he said they came after the election results were known.
There was no error therefore, in the IAA finding that there was an inconsistency in the applicant’s claim. The particular as pleaded is not made out. That should be sufficient to dispose of the particular. This is particularly so when the subsequent oral submissions were unable to provide a clear or coherent explanation of the particular.
In any event, the assertion in the particular is also not made out. It is important to note, that it was central to the applicant’s claim to fear harm that he had stood as a candidate at an election for the UNP. He fled Sri Lanka after the election because other UNP candidates were targeted by their opponents the EPDP, and that unknown masked men had also come to his house.
It was reasonably open, and not illogical, for the IAA to find that when this occurred was important. It’s finding that the applicant’s inability to remember when this occurred, given its “significance” was reasonably open to it, particularly given the frightening circumstances otherwise asserted by the applicant.
It is also important to note, that the applicant’s inability to remember when the masked men came looking for him was found by the IAA to undermine his claim that these men ever came looking for him ([24] at CB 340).
The finding that was said to undermine his credibility is expressed at [25] (CB 340), and arises from other inconsistencies in the applicant’s claims.
As is clear from [25] of the IAA’s reasons, the inconsistency was between the applicant’s claim at the interview that he was not sure if other UNP candidates were threatened by these men. In his statutory declaration he plainly stated that they were, and that this was part of the reason he left Sri Lanka.
Here again the IAA’s reasoning, and relevant finding, was not illogical. The fact of the inconsistency was reasonably open to the IAA on what was before it. Nor can the inconsistency be said to be trivial in circumstances where the applicant otherwise claimed part of the motivation (if not the main reason) for leaving Sri Lanka was what had occurred to the other UNP candidates after the election.
While it is the case that credibility findings made by the IAA are susceptible to be impugned, the IAA gave intelligible and coherent reasons, probative of the material before it, for making this finding.
This is not a case where the applicant has been able to demonstrate ““extreme” illogicality” (see DAO16 at [30] at (5)]. Rather, in the circumstances this is another attempt at persuading the Court to engage in impermissible merits review.
Four, “Giving too much weight to an inconsistency”. The applicant’s particulars directed attention to a part of [24] of the IAA’s decision record:
“…‘inconsistency regarding when the armed men first starting looking for the applicant at his home undermines the applicant’s claim that armed men came looking for him’ [24]…”.
The assertion of error is said to be that the IAA gave “too much weight” to this in circumstances where the applicant was a minor, and he had given an explanation at the interview with the delegate in the following terms:
“SHEV interview: ‘They might have done something to them in different areas which may not be aware and not able to remember but same thing would have happened to other members if they have campaigned openly about their damages to the community. I am not sure.’ (page 23)”.

In submissions the applicant explained that the IAA’s error arose from a misunderstanding of the applicant’s claims and evidence, which if properly understood reveals no inconsistency as found by the IAA. This is explained as follows.
In his interview with the delegate, the applicant said he was “not sure” if other UNP candidates were harmed or threatened by these men. The submission was that here the applicant was addressing the question of whether UNP candidates were killed by “these men” whom he now says were men who attended at his home.
The complaint is that the applicant was not giving an opinion as to whether other UNP candidates were killed by some other persons. In his statutory declaration the applicant said that some of the candidates were killed by unknown persons who are believed to be closely linked to the Sri Lankan government.
As with the armed men particular, the submissions focused on various parts of the transcript of the interview with the delegate to support the proposition that at the interview the applicant was addressing a different point to that addressed in the statutory declaration
What the applicant wrote in his statutory declaration speaks for itself. The part quoted by the IAA at [25] of the decision record is an accurate quote of what appears at [16] of the applicant’s statutory declaration (CB 59).
The first question therefore, for current purposes is whether the IAA misunderstood the applicant’s evidence as given at the interview with the delegate.
The part of the interview with the delegate referred to by the IAA at [25], which contains the reference to “gutsy person” or “gutsy” is to be found in the extract from the interview transcript as set out at T 41, line 20–line 21 (see item 7 of [77] below).
However, the answer to the applicant’s particular is to be found with reference to a number of parts of the interview transcript as set out in the Minister’s written submissions:
1.      T 34, line 37 – line 45:
“VANDANA: You stated in your statement of claims that unknown armed persons came to your house.
THE INTERPRETER: Yes
VANDANA: When did they come to your house?
THE INTERPRETER: The – as soon as the election result came out, after two or three days later ….. came to my house”.
2.      T 35, line 13 – line 18:
“THE INTERPRETER: Many times. If they come one day, they came – leave a little gap then come. We can’t – we don’t know what time they will come.
VANDANA: Sorry. Can you say again. Many times?
THE INTERPRETER: Many times...”
3.       T 36, line 1 – line 2:
“THE INTERPRETER: They come, four or five people. They come with a mask. They had a mask. When they come the dogs bark, like - - -”.
4.      T 36, line 30 – line 43:
“THE INTERPRETER: Even just before come to in Australia, that’s – in August, they came to my house.
VANDANA: So when they came to your house, what did they say to your family?
THE INTERPRETER: They inquire about me. Sorry. They – they – whenever they come to my house, they ask – inquire about me. My family always answer, “He has gone somewhere else. We don’t know, actually.” They don’t say where I am gone.
VANDANA: Did they enter the house?
THE INTERPRETER: So if they – as soon as they enter in the front gate, then I – I see them all, and then my family members say something, then I escape from the back …..”
5.T 38, line 18 – line 40:
“THE INTERPRETER: So during that period, the police was in control by the government. So even I go and complain to the police, that’s not – not worth. They’re not – not going to take any action.
VANDANA: So did you go there or not?
THE INTERPRETER: No.
VANDANA: Did you report these visits to your party?
THE INTERPRETER: Because my party’s lost, so they have no power. They can’t protect me.
VANDANA: But did you report it to them?
THE INTERPRETER: Yes, I did. I complained about.
VANDANA: What did they do when you told them?
THE INTERPRETER: They told me they can’t protect me, that they can’t protect you from the ….. sorry. So they say, “We haven’t got a talent to give protection.” Just - - -”.
6.      T 39, line 29 – T 40, line 32:
“VANDANA: You said in your statement of claims that you believed that these unknown armed persons were members of the EPDP. Why do you believe that it was EPDP members who was at your place?
THE INTERPRETER: Sorry.
VANDANA: Why do you believe that it was EPDP members?
THE INTERPRETER: They speak in Tamil. They spoke in Tamil. They are the one that join with the army.
VANDANA: What I’m trying to understand is why did you not think that they could be from the Illankai Tamil Arasu Kachchi. Or, yes, why not from that party?
THE INTERPRETER: The Tamil Arasu Kachchi, they haven’t got any weapons. They’re the independent party. They don’t carry any weapons. That’s why.
VANDANA: And earlier you said that the persons who came to your house were from the UPFA, the United People’s Freedom Alliance, or Iykkiya Makkal Sudandira Munnai.
MR SINNARAJAH: Yes.
VANDANA: But in your statement you said that you believed they were EPDP. Why?
THE INTERPRETER: Actually, they ….. during the election EPDP was alliance with this party. In the election, they worked together. They’re basically the same. They won the election together. That’s all.
VANDANA: And was your involvement with the UNP a reason for the EPDP or the army to be interested in you?
THE INTERPRETER: So what, in - - -
VANDANA: So how was your involvement with the UNP a reason for the EPDP or the army to be interested in you?
THE INTERPRETER: The main reason is the EPDP was joined with the government party, the person – the people who were ruling the country. They were aligned. They’re together. The EPDP done the damage in my community. The did the raping, the killing, the kidnaps. All done by the EPDP. They are with the government. They were with the government. They are the one done the damage to my community. That’s why they after me.
VANDANA: Could it be that it could be some other person or group that is interested in you?
THE INTERPRETER: No, only this is the group that have a problem with them. The two groups had came with the weapons, then.”
7.      T 41, line 11 – line 33:
“VANDANA: So what did they do to other UNP candidates?
THE INTERPRETER: So even my ….. area, I was the only – the gutsy person. I did – I spoke a lot of things in front of the public. I am the leading persona and the gutsy person who spoke about it.
VANDANA: So did they harm any other candidates?
THE INTERPRETER: So I am the only person. I am – I am the – I was leading. I am the person spoke in public. It very gutsy, and I brought all the bad things what they did to the public. I was – and I was the leader to – to that. Yes.
VANDANA: All right, I hear what you’re saying. What I’m asking is, “Were any other UNP candidates harmed by them?”.
THE INTERPRETER: They arrest – done something for them in different areas probably, and now I can’t remember, but same thin would have happened in other – in different areas, but I am not sure.
VANDANA: You are not sure?
THE INTERPRETER: No.”
[Error in the Original.]
On the evidence, the impugned part of [25] as it relates to the interview with the delegate arises specifically from what is set out at T 41, but that must be understood, as that is also informed, by the other evidence given by the applicant.
Further, in context, what the IAA focused on at [25] was the applicant’s evidence at the interview with the delegate that he was not sure if other UNP candidates were harmed or threatened by “these men” (CB 340).
In the interview with the delegate, the applicant referred to “them”. In context, and see in particular T 41, line 24 – line 33, the “them” on the applicant’s evidence is a reference to the EPDP who were “joined” with the government party.
For current purposes, the applicant was specifically asked whether this was the group he had a problem with or whether some other group was interested in him. The applicant’s answer was tolerably clear that this was the only group (the EPDP and the government party).
It was reasonably open to the IAA to find inconsistency between what the applicant stated at the interview and what was in the statutory declaration. In his statutory declaration, the applicant referred to UNP candidates being targeted and killed by unknown persons linked to the Sri Lankan government.
At the interview with the delegate, when plainly being asked in context about harm to UNP candidates, he was not sure whether other UNP candidates were harmed.
When read plainly, the inconsistency found by the IAA, at [25], was that at the interview the applicant said he was not sure whether other UNP candidates were harmed or threatened, yet in his statement he said that other UNP candidates had been targeted and some were killed.
The applicant’s attempt now to focus on the perpetrators of harm, (“them”, the EPDP, unknown men and the like) itself is a misunderstanding of the IAA’s finding at [25].
The IAA’s focus was on the applicant’s inconsistent statements about whether the UNP candidates were harmed, not necessarily on who had harmed them. The particular fails at the factual level. In all, this particular lacks requisite merit and is not made out.
Five, “Misunderstanding the evidence concerning 2011 election”. The particulars assert that the IAA misunderstood the applicant’s evidence which then led to the finding, at [28] of the IAA’s decision record, that the applicant was unable to correctly state who won the election where he had stood as the UNP candidate.
Paragraph 28 is in the following terms (at CB 341):
“28. After assessing all the evidence I make the following findings. The applicant is a Tamil male who has always lived at the same home address in Jaffna with the exception of brief periods of displacement in 1998-99. The applicant stood as the UNP candidate in Nallur, Jaffna, in the local government elections held in July 2011. The applicant lost in the election. The TNA won the election in Nallur, Jaffna, and the UPFA came second. The applicant was not able to correctly state who won the election in the area where he stood as the UNP candidate. Prior to the election the applicant had no involvement in politics and neither did any member of his family. After the election the applicant discontinued his involvement with the UNP. After the election, the applicant remained living at his family home for more than a year until 31 August 2012 when he left Jaffna and departed Sri Lanka for Australia on 2 September 2012. The applicant was not directly threatened or harmed during that time. The majority of the applicant's family continue to live in the applicant's family home in Jaffna. There is no claim, or evidence to indicate that the applicant's family have been threatened or harmed at any time, or that the armed men continue to look for the applicant.”
In written submissions the applicant submitted that the IAA’s concern regarding the applicant’s lack of knowledge about the election results arose from what it misunderstood had occurred at the interview with the delegate and as this misunderstanding was revealed at [17] of its decision record:
“17. Also at the SHEV interview the applicant was asked who won the election and he responded that the opposite party won, the EPDP, and they are aligned with the Sri Lankan Freedom Party (SLFP). The delegate put to the applicant that the official election results show that in the Nallur local government area the llankai Tamil Arasu Kadchi (Tamil National Alliance / TNA) won, followed by the United People's Freedom Alliance (UPFA), and the UNP came last. I have confirmed this result to be correct.¹ The applicant responded that he meant the UPFA, not the SLFP, and they are related to the EPDP through an alliance. I note that various country information sources indicate that the main constituent of the UPFA is the left-of-centre SLFP and the EPDP was at that time part of the UPFA alliance. However it is a concern that the applicant did not identify that the TNA won the local government election in the district in which he claims to have stood as the UNP candidate.”
[Footnote Omitted.]
To make good this assertion the applicant referred to the interview with the delegate:
1.T 32, line 25 – line 35:
“VANDANA: And who won the elections?
THE INTERPRETER: Opposite party.
VANDANA: What’s the opposite party named?
THE INTERPRETER: EPDP. They are aligned with the SLIP.
VANDANA: Aligned with the - - -
THE INTERPRETER: Sri Lankan – SLIP.”
2.T 33, line 16 – line 20:
“VANDANA: Okay. There is no SLP party that I can see. When you say SLP who is in power, do you know – can you tell me which party you’re talking about?
THE INTERPRETER: Iykkiya Makkal - - -
VANDANA: Okay. Just say it in your language. That’s fine.”

3.T 33, line 29 – line 32:

“VANDANA: Okay. I have a document which talks about the results of the local authorities. And says that the party that won the election in Lower Pradeshiyya Sabhas was Illankai Tamil Arasu Kachchi. UNP is at the bottom but the one that got the most votes was Illankai Tamil Arasu Kachchi. Yes.”
4.T 34, line 19 – line 35:

“VANDANA: So when you’re saying Iykkiya Makkal Sudandira Munnani, you’re talking about the United People’s Freedom Alliance.
MR SINNARAJAH: Yes.
INTERVIEWER: Or UPFA.
[THE APPLICANT]: Yes.
VANDANA: Is that correct?
MR SINNARAJAH: Yes. Correct.
VANDANA: How are these parties related to the EPDP?
MR SINNARAJAH: They all alliance here. They all together. EPDP and this one are all together. They alliance to each other.”

After reviewing the transcript before the Court, the applicant’s counsel submitted that it was all “rather confusing”, and the highest that the complaint in the particular could be put, was that although the applicant did not mention who actually won the election his evidence was that “they were all together”. This apparently was a reference to the parties opposed to the TNP.
As the Minister submitted, other parts of the transcript are also relevant to the disposition of this particular. For example T 33, line 29 – T 34, line 35:
“VANDANA: Okay. I have a document which talks about the results of the local authorities. And says that the party that won the election in Lower Pradeshiya Sabhas was Illankai Tamil Arasu Kachchi. UNP is at the bottom but the one that got the most votes was Illankai Tamil Arasu Kachchi. Yes.
THE INTERPRETER: …..
VANDANA: Okay. What I’m trying to understand is you said that Iykkiya Makkal Sudandira Munnani party won the election, but here it says Illankai Tamil Arasu Kachchi.
THE INTERPRETER: So the first came – Tamil Arasu came first. Second, the United – this one came second. Then ….. came third.
VANDANA: Yes. Yes. I understand what you’re saying that these are the parties that won the elections and United National Party was last. But what I’m trying to say is you have said that there was another party, Iykkiya Makkal Sudandira Munnai party, that won the elections. But here it says something different. That’s what I’m trying to understand.
THE INTERPRETER: I will tell you what I was saying. This party is in front of our party. That’s what I’m saying.
VANDANA: Okay. But that – if that’s what you’re saying, I still don’t see that party in this document
MR SINNRAJAH: United People’s - - -
VANDANA: Freedom Alliance
THE INTERPRETER: Actually, this is the Tamil version – Tamil name.
VANDANA: Okay
THE INTERPRETER: This is an English name.
[THE APPLICANT]: It’s a meaning.
VANDANA: So when you’re saying Iykkiya Makkal Sundandira Munnani, you’re talking about the United People’s Freedom Alliance.
MR SINNARAJAH: Yes
VANDANA: Or UPFA.
MR SINNARAJAH: Yes.
VANDANA: Is that correct?
MR SINNARAJAH: Yes. Correct.
VANDANA: How are these parties related to the EPDP?
THE INTERPRETER: They all alliance here. They all together. EPDP and this one are all together. They alliance to each other.”
What emerges from the evidence before the IAA, is that a particular party won the local election in the applicant’s district. As the extract from the transcript reveals, the applicant did not name this party. The references to “[t]hey alliance to each other” in context, did not include the successful party.
The applicant’s submission now that it was all rather confusing, in the circumstances set out above, really reveals the lack of merit in the applicant’s particular. The IAA’s finding that the applicant did not identify the party that won the election in his district was reasonably open on the evidence before it.
Six, the particulars referred to “Misunderstanding the evidence regarding election speeches”. There appear to have been three elements to this complaint.
First, the particular asserts that the IAA misunderstood the applicant’s evidence when it did not accept “…that the main content of [the applicant’s] speeches were accusations against the EPDP and the UPFA of perpetrating crimes against Tamils”.
This quote is taken from [29] (at CB 341) of the IAA’s decision:
“29. In assessing the credibility of the applicant's claim that he spoke out about kidnappings, rapes and killings of Tamils in Jaffna and blamed the EPDP who work closely with the government and the SLA I note the following. The applicant stated several times that this was the topic of his campaign speeches in the villages that form part of the Nallur local government area. However he provided no detail about the content of his speech. He continually repeated that he spoke out about "kidnappings, rapes and killing" of Tamils in the area. Other than to claim that he blamed the EPDP for these atrocities he provided no detail of when, or who, or how, or why, or what he saw as the solution, or what he wanted to happen in response to the atrocities. On listening to the interview I am satisfied that the applicant was provided with ample opportunity to provide details of the issues he claims to have raised in his speech however he did not do so. I find the applicant's evidence regarding the content of his speeches is generalised, vague and without any detail. After assessing the evidence I accept that the applicant made speeches as the UNP candidate in the local government election; however I do not accept that the main content of his speeches were accusations against the EPDP and the UPFA of perpetrating crimes against Tamils.”
[Emphasis Added.]
Second, the particular also takes issue with the IAA’s finding that “the applicant provided no detail about the contents of his speech or what he wanted to happen in response to the atrocities”. The contention is that the applicant did provide detail.
The applicant referred to the transcript of the interview with the delegate:
1.T 29, line 3 – line 6:
“THE INTERPRETER: So when I was in the election, so I – on the stage, I speak – I spoke very publicly and very openly against the opposition party, the previous party, who was ruling, about raping – rapes and kidnaps, killings and what have they did to the community. I clearly – gave a good speech in front of the community.”
2.T 30, line 1 – line 3:
“THE INTERPRETER: - - - that I could take place. But main – my main intention is, I want to bring the things out, I want to speak on the stage – what’s happening to the community. That’s - - -”.
3.T 30, line 30 – line 32:
“THE INTERPRETER: I wanted to talk about the paramilitary – the people who are doing illegal things in my area. Like, you know, rape, killings and a lot of things. I wanted to bring – get out.”
The applicant’s argument before the Court was that the applicant did give significant detail about the content of his speeches and the IAA was in error for finding otherwise.
At [29] of its decision record the IAA made specific reference to the applicant’s evidence as to what he spoke about in the speeches. There is nothing in what the IAA reported, and as now set out in the transcript in the evidence before the Court, that reveals that it ignored, or misunderstood, or misrepresented, what the applicant said at the interview with the delegate,
What remains therefore, is that the real complaint here is with the IAA’s finding that he provided “no detail”.

The flaw in the applicant’s argument is that the IAA did not find he provided no detail at all. It plainly acknowledged what the applicant did say. However, it found that he provided “no detail” in relation to the specific matter it referred to in its analysis, and as emphasised in the reproduction of [29] set out above (see the first part emphasised at [97]).
The IAA’s analysis in this regard was logically probative of the evidence before it. It gave cogent reasons for its finding that the applicant made speeches, but did not accept that the content of the speeches was as the applicant now claims. The IAA’s assessment that his evidence to the delegate was “generalised, vague and without any detail” was reasonably open to it. This aspect of the applicant’s particular is no more than an expression of grievance with the IAA’s reasoning, it’s characterisation of this evidence, and its finding.
The particular also complains that the IAA did not seek to “clarify these issues”, or ask the applicant to clarify them.
In submissions this was explained as being that the delegate did not provide this opportunity at the interview. At best, it appeared the complaint was that it was not open to the IAA to make this finding, and although not articulated as such, presumably, given the assertion of jurisdictional error in the ground as a whole, that it was illogical of the IAA to have done so.
First, the applicant’s complaint ignores the relevant statutory context within which the IAA was required to conduct the review or assessment. This is not a review by the AAT under Part 7 of the Act, but rather a review under Part 7AA of the Act.
Any implication that the IAA should have invited, or was obliged to do so, the applicant to a hearing or an interview, lacks merit. The IAA’s statutory obligation is, in effect, to conduct a review “on the papers” (s.473DB). This is at the heart of the “fast track” process conducted by the IAA. There is nothing to indicate that the applicant sought to provide any “new information” in this regard to the IAA so as to engage s.473DD of the Act.
Second, the applicant has not explained before the Court why the IAA should have, in the circumstances of this case, obtained new information pursuant to s.473DC of the Act when there is no obligation on it to do so (s.473DD of the Act).
In all it was not illogical in the circumstances for the IAA to have characterised the applicant’s evidence in the way that it did. Its reasoning was not illogical. Particular 6 is without merit and not made out.
Seven, “particular” seven appears to be a similar complaint as that made in particular six, but with specific reference to another part of [29]. The applicant relied on the same arguments as put forward in relation to item 6 above. This particular fails for the same reasons as set out above.

Conclusion

The sole ground, as particularised, is not made out. It is appropriate to dismiss the application. I will make that order.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 19 December 2019