Eez18 v Minister for Home Affairs

[2019] FCCA 178

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 178

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the decision of the Authority not to exercise its powers under s 473DC of the Act was legally unreasonable – whether the Authority failed to intellectually engage with the applicant’s claims – whether the Authority misapprehended or misunderstood the applicant’s claims – whether the Authority identified the relevant law – whether the Authority misconstrued the relevant statutory provisions – whether the Authority adopted an unduly narrow meaning of s 473DD of the Act – whether the Authority’s adverse findings lack an evidence and intelligible justification – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: EEZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2253 of 2018

Judgment of: Judge Street

Hearing date: 31 January 2019

Date of Last Submission: 31 January 2019

Delivered at: Sydney

Delivered on: 31 January 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,700.00.

DATE OF ORDER: 31 January 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2253 of 2018

EEZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 23 July 2018 affirming a decision of the delegate not to grant to applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil male from the North of Sri Lanka. The applicant arrived in Australia on 11 September 2012 as an unauthorised maritime arrival and applied for the visa on 16 August 2016.

3. The applicant claimed to fear harm from the Sri Lankan authorities and paramilitary groups in Sri Lanka on suspicion of having Liberation Tigers of Tamil Eelam (“LTTE”) links. The applicant fears he will be of interest to the authorities because of his training with the LTTE in combat and landmines. The applicant fears he will be imputed with LTTE association because of his absence from Sri Lankan and fears being detained at the airport. The applicant also fears harm by reason of the data breach and releasing of his details in 2014 and the applicant fears harm by reason of his illegal departure and being a failed asylum seeker.

4. On 3 October 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate did not accept the applicant was a member of the LTTE or that he and his family had been harassed on account of his brothers’ suspected involvement with the LTTE or his work for Fondation Suisse de Deminage (“FSD”).

5. On 9 October 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions which were referred to in the Authority’s reasons.

6. The Authority identified the background to the visa application and had regard to the information referred by the Secretary under s 473CB of the Act. The Authority referred to the applicant’s submission dated 2 November 2017 and found insofar as it engaged with the delegate’s decision it was information to which the Authority had regard.

7. The Authority identified that with the submissions there was a letter from the purported Deputy Director General of FSD dated after the delegate’s decision. The Authority referred to the contention advanced that the letter supports the applicant’s claims as to his involvement with the LTTE rather than his training with FSD. The applicant referred to the letter and contended that it supports that he had only had very basic training with FSD in support of the contention that he must have had training with the LTTE. The Authority identified that the new information did not materially add anything that was corroborative of the applicant’s claim that he worked for the LTTE with landmines. The Authority noted that it had accepted that the applicant had worked as a de-miner for the FSD until about 2012, but it was in this context that the Authority found that there were not exceptional circumstances to justify considering the new information.

8. The Authority referred to a submission concerning another decision of the Authority concerning a different person. The Authority found the applicant appeared to have no relationship to that applicant and was not satisfied there were exceptional circumstances to justify considering that information.

9. The Authority referred to a Guardian news article, which the Authority found was new information and noted that it had not been explained why it could not have been provided earlier. The Authority was not satisfied that it adds anything to applicant’s case and it referred to the information of not being personal information. The Authority found the applicant had not satisfied the Authority as to the requirements of s 473DD(b) of the Act and that there were not exceptional circumstances to warrant consideration of the new information.

10. The Authority referred to a news article in the Indian Express, which it found was new information and was not satisfied there were exceptional circumstances to justify considering that new information.

11. The Authority also referred to submissions advanced in respect of the quality of the interpreting at the Safe Haven Enterprise visa interview not being of an acceptable standard and a summary having been provided of alleged errors. The Authority noted that the applicant’s representative attended the Safe Haven Enterprise visa and referred to what was said in that interview, even quoting the delegate, in an extensive post-interview submission and did not mention interpretation issues. The Authority noted the interpreter was an accredited interpreter and that the applicant indicated he understood the interpreter and that he had no objection to the interpreter.  The Authority noted the delegate also asked the applicant to notify him at any time by raising his hand if he did not understand the interpreter. At no stage did that occur during the Safe Haven Enterprise visa interview.

12. It was in those circumstances that the Authority found the instances of misinterpretation highlighted in the summary were inconsequential, either because, while the translation was not verbatim, when looked at in context the meaning of what was interpreted was the same or the instances identified did not go beyond the applicant’s central claims. The Authority gave an example of that interpretation. In light of that the Authority did not accept that the applicant’s presentation of his case was materially affected by the interpreting at the Safe Haven Enterprise visa interview. It was in those circumstances that the Authority was not satisfied that it was appropriate to exercise power under s 473DC of the Act to interview the applicant.

13. The Authority referred to the document provided of alleged errors and was not satisfied that there were exceptional circumstances to justify consideration of the new information and it was not satisfied that an extension of time was necessary to provide a translation of the Safe Haven Enterprise visa interview.

14. The Authority took into account a more recent Department of Foreign Affairs and Trade (“DFAT”) country information report dated 23 May 2018.

15. The Authority summarised the applicant’s claims. The Authority accepted that the applicant was a young Tamil male from the Northern Province where he had lived most of his life in a particular area that was controlled by the LTTE during the conflict. The Authority also accepted the applicant’s family was displaced in 1999 and 2007 due to conflict and that his parents and sister still live in the north of Sri Lanka in the family home.

16. The Authority referred to the applicant at the arrival interview contending that he was asked to only provide his claims in brief, which is why not all his claims and details were given at that stage. The Authority noted that it was not apparent from the audio of the arrival interview that the applicant was asked to only give brief responses. The Authority referred to the nature of the interviewer’s question, and did not accept the applicant was not given an opportunity to mention his central claims at that time.

17. The Authority noted that in the Safe Haven Enterprise visa interview the delegate explored with the applicant why he did not mention the full extent of his brothers’ involvement with the LTTE and the applicant contended it was because he feared being sent back. The Authority found the contention and explanation were inconsistent with the fact the applicant mentioned he and his brothers were forced to work for the LTTE. The Authority did not accept the applicant’s explanation for not mentioning the full extent of his and his brothers’ involvement with the LTTE prior to the Safe Haven Enterprise visa interview.

18. The Authority referred to the applicant’s claim that the men in his family were arrested at a particular camp on suspicion of having LTTE links and they were held in a militarised section of the camp. The Authority noted when further questioned at the Safe Haven Enterprise visa interview the applicant did not state that he and his father were in a militarised section of the camp, but rather that he remained with his parents and sister and two of his brothers who were detained after telling the authorities about their involvement with the LTTE. The Authority noted the applicant said he was not detained because his father explained to officials that he needed the applicant to assist him as he was vision impaired and his third brother was not detained because of disabilities. The Authority did not accept if the applicant was of interest because of suspicion of LTTE involvement that that explanation would have stopped the authorities from detaining him.

19. The Authority was prepared to accept that two of the applicant’s brothers were detained by the authorities in 2009 on suspicion of LTTE involvement and that one was never released and his whereabouts is unknown. In relation to the other brother, the Authority accepted that he was held in rehabilitation and released in 2010 and is now married and living in Sri Lanka. The Authority found it implausible that this brother would still have reporting obligations some eight years later after release and the Authority found the applicant provided no detail about this aspect of the claim, which was first raised during the Safe Haven Enterprise visa interview. The Authority did not accept that the applicant’s brother, who was released by the authorities in 2010, is still subject to monitoring by the authorities.

20. The Authority found the applicant’s account of being questioned at the camp in relation to his LTTE involvement to be unconvincing. The Authority found that the applicant was released with his family in 2010 back to his village because he was of no interest to the authorities at that time.

21. The Authority found the claim that the applicant joined the LTTE in late 2006 and undertook six months of training and then worked for them installing landmines intermittently from 2007 to 2008 to be inconsistent with his claim to have been displaced and to have travelled with his family to a number of locations. The Authority referred to the applicant’s assertion that he made landmines for the LTTE, but found his description of this very brief and focused on how the explosion was triggered, which knowledge would have been imparted to him working as a de-miner for the FSD.

22. The Authority referred to the applicant’s brothers being forced to work for the LTTE during the conflict and was not satisfied that this involved them in building and laying mines. The Authority did not accept the applicant was an LTTE member or that the LTTE trained the applicant on how to use landmines and in combat or that he worked for the LTTE from 2007 to 2008. It was in this context that the Authority referred to the FSD identity card and placed little weight on the letter dated 17 January 2013 from the attorney who claims to know the applicant, given the absence of firsthand experience of the incidents detailed.

23. The Authority did not accept the applicant stopped working for the FSD because of harassment by the authorities. The Authority found that if the applicant was genuinely wanted by the authorities in connection with an adverse security profile, the authorities would have detained him and the Authority did not accept that his working for the FSD would have stopped them.

24. The Authority did not accept the applicant was ever arrested by the authorities because in his Safe Haven Enterprise interview he said he was never arrested. The Authority did not accept that the applicant was of genuine interest to the authorities because they suspected that he had been trained in landmines by the LTTE. The Authority did not accept the Sri Lankan authorities went to his home and requested he attend a camp for questioning.

25. The Authority did not accept the applicant was wanted by the authorities in connection with an adverse security profile when he left Sri Lanka in 2012. The Authority did not accept the Sri Lankan authorities had gone to the applicant’s home questioning his family about him since his departure. The Authority found it implausible that the Sri Lankan authorities would recommence looking for the applicant some six years after his departure.

26. The Authority expressly referred in a footnote to the United Nations High Commissioner for Refugees (“UNHCR”) guidelines for assessing the international protection needs of asylum seekers from Sri Lanka. The Authority did not accept the applicant was wanted by the authorities in connection with an adverse security profile or otherwise when he left Sri Lanka in 2012.

27. The Authority did not accept the applicant’s brothers were high profile LTTE members or that the applicant was a member of the LTTE or worked for the LTTE or that he of interest to the Sri Lanka authorities in connection with an adverse security profile when he left Sri Lanka in 2012.

28. The Authority was not satisfied there was a real chance the applicant will be harmed on return to Sri Lanka by reason of his ethnicity, origin, his past experiences in Sri Lanka, including his work for FSD, or his brothers’ LTTE links and experiences with the authorities.

29. The Authority noted it had not accepted the applicant was an LTTE member or trained with the LTTE or that he was wanted by the authorities in connection with an adverse security profile when he left Sri Lanka. It was in these circumstances, given the applicant’s profile and the brevity and limited nature of the data breach, that the Authority did not accept there was a real chance the applicant would face any harm because of the data breach.

30. The Authority referred to the applicant saying he would not go back to the family home if he returned to Sri Lanka and did not accept that these circumstances amount to serious harm.

31. The Authority accepted the applicant had departed Sri Lanka illegally. The Authority was not satisfied that the treatment the applicant may experience as a consequence of his illegal departure, questioning, a fine payable by instalments, court appearances and associated costs and possible detention in an airport holding cell, would amount to serious harm.

32. The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) applies to all Sri Lankan citizens and is not discriminatory on its face or in its enforcement. The Authority was not satisfied that the enforcement amounts to systematic or discriminatory conduct. The Authority found the treatment the applicant will face as a consequence of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) is not persecution for the purposes of s 5J(4) of the Act.

33. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority was not satisfied the applicant met the criteria under s 36(2)(a) of the Act.

34. The Authority was not satisfied the applicant faced a real chance of significant harm as a consequence of his illegal departure or as a returning asylum seeker. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence to the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer any harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 14 August 2018. On 5 September 2018, orders were made giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table the applicant sought to agitate whether he had been given a proper opportunity at the first interview to explain his claims. This was a matter explicitly referred to by the Authority in the course of the Authority’s reasons. The Authority referred to the oral recording. The applicant’s disagreement with the Authority’s assessment of the opportunity given to the applicant in finding that the applicant was given an opportunity to raise his claims does not identify any relevant legal error by the Authority in the conduct of the review.

4. The applicant also referred to his elder brother being a leader and captain of the LTTE. The Authority made a different finding in relation to the extent of the brother’s involvement and expressly referred in that regard to the release of the brother who is married and living in Sri Lanka, and rejected the contention that the brother was subject to continuing reporting requirements. That reasoning of the Authority was open to the Authority and cannot be said to be unreasonable or lack an evident and intelligible justification. No relevant error arises by reason of the applicant’s disagreement in respect of the role of his brothers with the LTTE and the adverse findings by the Authority.

5. The applicant referred to a letter that was provided to the Authority and submitted that the Authority did not take into account. This appears to be a reference to the letter dated 31 October 2017 provided after the delegate’s decision from the purported Deputy Director General within FSD. The Authority in its reasons in considering whether that letter met the requirements under s 473DD of the Act referred to the substance of the letter and why it did not materially advance the applicant’s claims. The substance of the Authority’s reason on its face reflects it taking into account of the whole of s 473DD of the Act.

6. Indeed, in the Authority’s reasons in considering new information express reference is also made in paragraph 7 to s 473DD(b) of the Act. There is no basis on the face of the Authority’s reasons in relation to the said letter to find that the Authority misconstrued or took into account erroneous narrow meaning of s 473DD of the Act. On the face of the Authority’s reasons there is no basis to infer that the Authority failed to take into account the whole of s 473DD of the Act in determining whether or not there were exceptional circumstances to justify considering the new information and the nature of the letter. On the face of the Authority’s reasons no relevant error is made out in respect of the Authority concluding that there were not exceptional circumstances to justify considering the said letter.

1. The applicant also referred orally to their being a number of errors that the applicant contended amounted to 81 in relation to the interpretation at the Safe Haven Enterprise visa interview. There is a table of nine alleged errors that was provided with submissions advanced on the applicant’s behalf to the Authority. Those submissions and the alleged errors were expressly considered by the Authority and the Authority gave reasons as to why it considered the alleged errors to be insignificant and immaterial. The applicant has had an opportunity to put on further evidence and has not done so. On the face of the Authority’s reasons the finding that the errors were not material was open to the Authority.

2. The finding by the Authority that in the circumstances an interview of the applicant was not warranted was open to the Authority and cannot be said to be a legally unreasonable exercise of power under s 473DC of the Act. The Authority’s qualified observation in relation to the submission material in respect of the errors and to the extent that it might be new information also does not reveal any misconstruction or misunderstanding of s 473DD or of s 473DC of the Act.

3. The applicant also disagreed with the Authority’s finding in respect of the extent of his involvement with the LTTE and disagreed with the Authority’s finding that he did not face a real risk of significant harm or serious harm because of the data breach. The Authority considered the applicant’s involvement with the LTTE and made adverse findings for the reasons summarised above as to the applicant’s want of any LTTE profile. Those reasons read as a whole cannot be said to lack an evident and intelligible justification. The Authority also provided reasons in support of the adverse finding concerning the data breach as summarised above. That adverse finding cannot be said to lack an evident and intelligible justification. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   Ground 1

   The Authority's consideration of the Applicant's request that opportunity be given to present transcript was misconceived as "new information" whereas the Applicant (IAA at [9]) when it was information about the proceedings at the SHEV interview. Alternatively, the Authority misconstrued the requirements of exceptional circumstances as the delegate itself was confused (IAA at [9]); the Authority misconstrued / misapprehended the requirements of "exceptional circumstances" and arrived at conclusions that is irrational, illogical and unreasonable; arrived at decision regarding opportunity to present the transcript is irrational / illogical and / or unreasonable and procedurally unfair; it has failed to intellectually engage with the Applicant's claims. The Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Authority refused to consider to allow the transcript to be given to the Authority which would contain critical information; the decision is irrational / illogical and unreasonable.

   (b) The Authority refused to accept accurate translation of the proceedings and extensive alleged errors.

   (c) The Applicant was involved in LTTE activities.

   (d) The Authority committed jurisdictional error.

   Ground 2

   The Authority erred in the engagement with the various information (IAA at [5] - [9]) and committed jurisdictional error. The Authority failed to properly identify, assess and address whether it engaging with the letter regarding exceptional circumstances actually considering the letter. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has failed to properly engage with the issue of exceptional circumstances.

   (b) The Authority has not properly engaged with the issue of exceptional circumstances and/or misconstrued “exceptional circumstances”.

   (c) The Authority has committed jurisdictional error.

   Ground 3

   The Authority failed to take into consideration UNHCR guidelines (IAA at [16]; [21]) and properly identify, assess and address whether the Applicant would be at risk with family members with LTTE connections and the NGO connections. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The authority interpreted the LTTE family link narrowly in the circumstances where the Applicant's brother was detained and is still missing;

   (b) The Authority has conflated the issue of the Applicant's knowledge about combatant activities and has failed to take into account relevant consideration (UNHCR guidelines).

   (c) The Authority committed jurisdictional error.

   Ground 4

   The Authority committed error of law and/ or jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants' particular circumstances of data breach (IAA at [3 7]) in the circumstances of the Applicant's L TTE connection and in particular the missing brother and per the Applicant's NGO activities. Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has been not considered the particular profile and particular characteristics/ attributes of the Applicant.

   (b) The Authority failed to identify and assess the risk relative to the Applicant's circumstances.

   (c) The Authority has thereby committed jurisdictional error.

   Ground 5

   The Authority's rejection of L TTE association claims [himself and brothers] (IAA at [18]) lacks rational and logical and there is no proper to reject the claims. The Authority relying upon trivial inconsistencies and/ or is unreasonable. The Authority has thereby committed jurisdictional error.

   Particulars

   (a) The Authority has failed to properly engage with the LTTE claims.

   (b) The Applicant had given detailed evidence of the operations (had information regarding names used, badge used and so forth).

   (c) The Authority relied on trivial matters to state that the Applicant was not involved with LTTE.

   (d) The Authority has committed jurisdictional error.

   Ground 6

   The Authority misapprehended the totality of the Applicant's skills in dealing with mines and and thereby finding that the Applicant was not at risk. The Authority failed to properly identify, assess and address whether it engaging with the letter regarding exceptional circumstances actually considering the letter. The Authority has thereby has thereby committed jurisdictional error.

   Particulars

   (a) The Authority misapprehended the Applicant's handling of mines.

   (b) The NGO only taught de-mining skills.

   (c) The de-mining skills is one aspects of the skills.

   (d) The use of the mines was taught by LTTE.

   (e) The Authority failed to ask correct question and deal with the claim.

   (f) The Authority has committed jurisdictional error.

Ground 1

1. In relation to ground 1, the Authority provided reasons why the Authority did not exercise the power under s 473DC of the Act, which included the insignificance or want of materiality of the alleged errors. That was an evident and intelligible justification given the statutory provision of Part 7AA of the Act. In those circumstances the Authority’s finding that there was no need to interview the applicant cannot be said to be legally unreasonable. Accordingly, there was no irrationality, illogicality or unreasonableness or procedural unfairness as alleged in ground 1.

2. The contention that the Authority did not intellectually engage with the applicant’s claims is inconsistent with the compliance reasoning of the Authority as summarised above. Nor is there any basis to conclude that the Authority misconstrued the statutory provisions or was confused in the exercise of its powers. The conduct of the review and its deliberations under s 473DC or s 473DD of the Act accord with the statutory regime. The Authority did not refuse to consider the transcript given to the Authority. Rather, the Authority found that the alleged errors were not material and it was in that context that the Authority declined to exercise the power of s 473DC of the Act. It was open to the Authority to make the additional finding to the extent that the table of alleged errors constitute new information and the requirements of s 473DD of the Act were not met. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, this alleges error in respect of the Authority’s consideration of new information in paragraphs 5 to 9. For the reasons the Court has earlier given, the Court does not accept that the Authority misconstrued or adopted an unduly narrow meaning of s 473DD of the Act in the consideration of the new information identified by the Authority as summarised above. The Court finds that the Authority, on a fair reading of the reasons, took into account the whole of the provision of s 473DD of the Act.

2. There is no basis for the Court to find that the Authority misconstrued or misunderstood the concept of exceptional circumstances in the determination made in paragraphs 5 to 9 concerning the new information and in respect of what the Authority found to be new information. Further, the Authority’s reasons reflect a real and genuine engagement with the substance of the submissions concerning the new information. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the Authority’s reasons do make an express reference to the UNHCR guidelines and in those circumstances there is no basis to find that the Authority failed to take into account the UNHCR guidelines in considering the applicant’s claims. Given the absence of LTTE involvement by the applicant in the findings by the Authority, there was no reason for the Authority to make further express findings by reference to the UNHCR guidelines. The Authority rejected the applicant’s contention as to his LTTE involvement and training in respect of combat and laying of mines. In those circumstances, no error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the applicant takes issue with the adverse findings concerning the data breach. The Authority in its reasons, as summarised above, identified that it had not accepted the applicant was an LTTE member or trained with the LTTE or that he was wanted by the authorities and referred to the applicant’s limited profile as well as the brevity and limited nature of the breach.

2. In those circumstances the adverse finding by the Authority cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the adverse finding, that was open to the Authority, in substance, invites this Court to engage in merits review. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, in rejecting the applicant’s claims in respect of his and his brothers’ involvement with the LTTE, the Authority took into account the release of the applicant’s brother, his continual presence in Sri Lanka and rejected the claim that the brother was required to engage in continuing reporting and found that the applicant was not of interest to the Sri Lankan authorities and rejected the applicant’s explanation as to why he had not been detained.

2. In those circumstances the Authority’s adverse findings in relation to the applicant’s LTTE claims cannot be said to lack an evident and intelligible justification. Further, the Authority’s reasons, as summarised above, reflect a real and genuine engagement with the applicant’s claims. To the extent that the applicant submits that the Authority’s adverse finding was based on trivial and insignificant adverse findings, that in substance is an invitation to this Court to engage in merits review. The rejection of the applicant’s explanation as to why the authorities did not detain him cannot be said to be trivial and insignificant matters. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, the applicant asserts that the Authority misapprehended the totality of his evidence in relation to mines and in the conclusion that the applicant did not face a real risk of significant harm. The Authority’s reasons as summarised above reflect no misapprehension or misunderstanding of the applicant’s claims. The Authority accepted the applicant had been employed by a particular entity, but rejected the applicant’s claims in respect of his role in the LTTE. To the extent that the ground relies upon the letter provided post-the delivery of the delegate’s decision, which was new information, for the reasons already given that adverse finding under s 473DD of the Act was open to the authorities and reveals no error.

2. Insofar as the applicant’s ground is intended to refer to the letter dated 17 January 2013, the Authority identified the absence of firsthand experience by the writer and in those circumstances the placing of little weight on that letter was open to the Authority and cannot be said to lack an evident and intelligible justification. The applicant’s contention as to the limited training that he received in respect of the mining, in substance, invites this Court to engage in merits review.

3. It is not apparent on the face of the Authority’s reasons that there is any misapprehension of the totality of the applicant’s skills in relation to dealing with mines and the Authority’s rejection of the applicant’s contentions in that regard concerning the LTTE were open to the Authority and cannot be said to be unreasonable. There was no failure by the Authority to ask the correct questions. On the face of the Authority’s reasons, the Authority correctly identified the relevant law, but made adverse findings that were open and dispositive of the applicant’s claims. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 March 2019