EGX19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 119
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGX19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 119
File number(s): ADG 409 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 7 February 2025 Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA failed to give adequate consideration to material before it – whether the IAA decision was legally unreasonable – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 5J, 36(2)(aa), 36(2A), 473CB, 476 Cases cited: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 27 September 2023 Date of hearing: 28 November 2024 Place: Adelaide Counsel for the Applicant: Oliver Jones Solicitor for the Applicant: Ray Turner Immigration Lawyers Counsel for the First Respondent: Josephine Battiste Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 409 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGX19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (SHEV). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the IAA decision. On that basis, his application cannot succeed.
BACKGROUND
The applicant arrived in Australia as an unauthorised maritime arrival on 26 May 2013 (Court Book (CB) 34, 181). He is a Sri Lankan Tamil (CB 22).
On 6 June and 22 July 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview that took place in two parts (CB 20). In those interviews, the applicant claimed that he left Sri Lanka as he feared harm from his brother’s involvement with the Liberation Tigers of Tamil Eelam (the LTTE). He claimed he had been questioned and beaten by Sri Lankan authorities (CB 26). If returned to Sri Lanka, he fears that he will be taken into custody and tortured by the authorities (CB 27).
On 4 July and 30 August 2016, the applicant was invited on two separate occasions to apply for a Temporary Protection (subclass 785) visa (TPV) or a SHEV by 1 October 2017 (CB 36-37, 41-44). On 20 June 2017, the applicant lodged a SHEV application (the visa) (CB 50-88) with the assistance of a migration agent, who confirmed that they were not acting on behalf of the applicant (CB 48-49). The applicant provided a statement of claims and other documentation in support of his application (CB 89-97). On 17 January 2019, the applicant was invited to attend an interview scheduled for 11 February 2019 (CB 107-108).
Following that interview, on 4 September 2019, a delegate of the Minister refused to grant the applicant the visa (CB 131-155).
On 10 September 2019, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 156-157).
On 4 October 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 179-198).
On 30 October 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE IAA DECISION
To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Act (at [2]).
The IAA set out the applicant’s protection claims as follows (without alteration) (at [3]):
•He previously experienced harm from the Sri Lankan authorities because his brother was a member of the Liberation Tigers of Tamil Eelam (LTTE); and
•If he were returned to Sri Lanka he would be returning to the dangerous situation he left, but now it would be even more dangerous because he knows that people who return to Sri Lanka after trying to escape regularly ‘disappear’ soon after return. It is widely believed that the Sri Lankan government causes those disappearances. He does not know exactly what happens to these people when they disappear, but he has heard many stories of this happening to people who return from foreign countries.
The IAA accepted the applicant’s claims as to his background, namely, that he is a national of Sri Lanka from the Northern Province. The IAA found and accepted that the applicant’s receiving country is Sri Lanka, and that he is of Tamil ethnicity and Hindu faith (at [4]). The IAA then set out the applicant’s background in Sri Lanka before his arrival in Australia (at [5]).
The IAA set out the applicant’s claims regarding problems in Sri Lanka (at [6]-[13]). The IAA summarised his claims that his brother joined the LTTE in 2006, but that he does not know the details of his brother’s service, and that he himself was never in the LTTE (at [6]). The IAA noted, however, that the applicant had been of adverse attention to Sri Lankan authorities from 2009 onwards because they wanted to locate his brother, who had escaped a Sri Lankan Army (SLA) camp (at [11]). The IAA accepted these claims but had concerns regarding the inconsistent details of that adverse attention (at [11]).
The IAA outlined that the applicant’s claims of adverse attention had evolved from a week’s detention and torture in 2009 followed by monthly reporting as set out in his SHEV statement, to his detention and torture for three weeks followed by morning and evening reporting as claimed at the SHEV interview. The IAA noted inconsistencies with the periods of time the applicant claimed to be living at his family and aunt’s home, as well as an inconsistency that, in the time he was in hiding in Sri Lanka, he continued to report twice a day to the SLA to sign in (at [12]).
The IAA accepted claims regarding the applicant’s brother, namely, that he was in the LTTE from 2006, captured by the authorities in 2009, and went missing while he was in detention in 2009. The IAA also accepted that the SLA detained the applicant in 2009, tortured and questioned him about his brother’s whereabouts in detention, forced him to regularly report and sign in, and beat him on some occasions when signing in. However, the IAA rejected the applicant’s claims advanced at the SHEV interview about having to report twice daily, and yet also remain in hiding, soon after his release in 2009 until he left Sri Lanka in 2013. The IAA found these claims to not be credible. The IAA noted it preferred the claims in the SHEV statement rather than the SHEV interview, therefore finding that the applicant was detained, questioned and tortured for one week in 2009 by the SLA, and after his release, was required to sign in on a monthly basis until he left Sri Lanka (at [13]).
Refugee criterion assessment
The IAA set out the refugee assessment criteria in respect of whether the applicant has a well-founded fear of persecution under s 5J of the Act (at [15]-[16]).
The IAA outlined country information in respect of young Tamil males from the north, LTTE links and imputed political opinions (at [17]-[29]). Ultimately, the IAA found that the applicant does not claim that he or his family have suffered any incidents of, or harm from, societal discrimination while in Sri Lanka, and consequently, no protection claim is sought on this basis (at [20]).
The IAA was not satisfied that the applicant’s fear of harm on account of his Tamil ethnicity, his LTTE links or any imputed political opinions is well-founded (at [22], [26]). Whilst the IAA accepted that persons with an actual or perceived significant involvement with the LTTE, or in post-conflict Tamil separatism, may be at risk (at [26]-[27]), it found that simply being a Tamil does not give rise to protection claims, nor does a person’s past membership or connection to the LTTE (at [22]). The IAA did accept, however, that if returned to Sri Lanka, it is plausible the applicant may be monitored or subject to surveillance for a period of time, but found that this would not increase his risk profile or his risk of being subjected to torture or other mistreatment (at [27]).
The IAA accepted that, on the applicant’s return to Sri Lanka, he may be identified by the authorities as an asylum seeker who departed Sri Lanka illegally (at [14], [30]). The IAA identified that it is an offence to depart Sri Lanka other than from an approved port of departure, but that a guilty plea often only attracts a fine which can be paid by instalments (at [31]). The IAA noted that, whilst the fines are often low, the cumulative costs of attending court over a protected period of time can be high (at [31]).
The IAA set out DFAT country information in respect of involuntary returnees. It outlined that involuntary returnees are processed by agencies who check returnees’ travel documents and identity information against immigration databases, intelligence databases and the records of outstanding criminal matters. The IAA also outlined that returnees are processed as a group, and individuals must remain until all returnees are processed (at [32]). Where an illegal departure is suspected, returnees are charged and arrested under the Immigrants and Emigrants Act 1949 (Sri Lanka). The IAA set out that, as part of this process, most returnees will be fingerprinted, photographed and have a statement taken by police (at [34]).
The IAA did not accept that, other than the possibility of further monitoring and surveillance for a period of time, the applicant will be at risk of adverse attention or that he faces a real chance of harm from the Sri Lankan authorities when scrutinised on his return to Sri Lanka (at [36]). The IAA was also not satisfied that there is a real chance the applicant would face serious harm on his return as a failed Tamil asylum seeker, as his processing at the airport would not support a conclusion that the law is selectively being enforced against him or applied in a discriminatory manner (at [39]).
Having made those findings and considered the claims individually and cumulatively, the IAA was not satisfied that the applicant would face a real risk of serious harm or persecution on return to Sri Lanka, now or in the reasonably foreseeable future, for any of the reasons claimed. The IAA therefore found that he does not have a well-founded fear of persecution (at [41]).
Complementary protection assessment
The IAA then considered the applicant against the complementary protection criterion. Whilst the IAA accepted the applicant may face some social stigma as a returned Tamil asylum seeker from Australia, as well as a period of monitoring and surveillance by the authorities, it was not satisfied that this would amount to severe pain or suffering that could reasonably be considered as cruel or inhuman in nature (at [45]-[46]).
In light of these findings, the IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm for the purposes of ss 36(2)(aa) and 36(2A) of the Act (at [46], [51]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the relevant visa criteria.
APPLICATION TO THIS COURT
On 30 October 2019, the applicant filed an application in this Court seeking review of the IAA’s decision.
On 30 August 2023, an amended application for judicial review filed on behalf of the applicant contains one particularised ground of review:
1.The Immigration Assessment Authority (IAA) made an unwarranted assumption in relation to the applicant’s credibility and as a result failed to give adequate consideration to the material before it and/or acted in a legally unreasonable way. The IAA therefore committed jurisdictional error.
Particulars
a. The IAA rejected critical parts of the applicant’s evidence at [13] of its decision on the basis that the applicant’s evidence was “simply not credible”.
b. The IAA put forward no explanation or reasoning for why it considered this to be the case.
c. The assumption made by the IAA was not one that was obvious or a matter of ordinary experience.
d. The IAA did not rely on any evidence about the position in Sri Lanka at the relevant time that could have formed the basis for its conclusion that the applicant’s account was “simply not credible”.
The applicant filed an affidavit with the original judicial review application on 30 October 2019. The affidavit annexed a copy of the IAA’s decision.
The materials before the Court include a court book numbering 198 pages (marked as Exhibit 1), an amended application and written submissions filed on behalf of the applicant on 30 August 2023, and written submissions filed on behalf of the Minister on 27 September 2023.
CONSIDERATION
As outlined above, the amended application for judicial review contains a single particularised ground asserting that an unwarranted assumption was made by the IAA in respect of a finding it made relating to the credibility of the applicant’s claim that he had gone into hiding from the Sri Lankan authorities and continued to report twice a day to the authorities during this period. In oral submissions, counsel for the applicant, Mr Jones, clarified the “unwarranted assumption” was an “unexpressed or unevidenced assumption about how things work in Sri Lanka”. Mr Jones also submitted that the conclusion reached in respect of this claim lacked an evident or intelligible justification such that it was legally unreasonable.
The particular impugned passage is set out below (emphasis added) (at [13]):
As he has consistently made the claim, I accept that his brother was in the LTTE from 2006, was captured by the authorities in 2009 and went missing while he was in detention in 2009. Given the country information concerning the routine monitoring and harassment that was occurring in the north and east of Sri Lanka at the relevant time, I also accept that the SLA detained the applicant in 2009; during his detention he was tortured and questioned about his brother’s whereabouts; after he was released he had to regularly report to the SLA and sign in; and on some occasions when signing in he was also beaten. His claims advanced at the SHEV interview about twice daily reporting and hiding from soon after his release in 2009 until he left Sri Lanka in 2013, is simply not credible. I reject those details he provided at the SHEV interview as an exaggeration and prefer his evidence in the SHEV statement. As such, I find that he was detained, questioned and tortured for one week in 2009 by the SLA who were looking for his brother, after his release he was required to sign in on a monthly basis and I accept that it continued until he left Sri Lanka. I accept he went to live at his aunt’s home about a year before he left Sri Lanka but I am not satisfied on the information before me that he was hiding at that or any other time while he was in Sri Lanka. As such action is consistent with the applicant ceasing to sign in with the SLA after May 2013, I am also prepared to accept that the Sri Lankan authorities, whether the SLA or CID [Criminal Investigation Department], turned up at his family home once or twice in 2013 or early 2014 to ask about the applicant’s whereabouts.
It can be seen then that the IAA accepted all of the claims which had been consistently advanced by the applicant. However, it was faced with two contrasting versions in relation to two aspects of the applicant’s claims relating to the frequency with which he was required to report to the SLA, and whether or not he had been in hiding between 2009 and 2013.
In his statement of claims in support of his claims for protection made on 20 June 2017, the applicant claimed that he had been required to report on a monthly basis and that he had lived with his aunt for about a year in 2012. That statement was in the following terms (CB 89-90):
However, from that time on [2009], I was forced to report to an Army camp once a month to sign in, so the Army could keep track of me. If I was a few days late in signing in, I would be questioned about the reasons for my lateness, and often beaten by the Army officers if they didn’t think my reasons were good enough.
…
In 2012, the family decided that I should flee my hometown of Wavunia and go live with my mother’s younger sister in Pavakulam, another town. Originally, it was just going to be for a month, but it ended up being for a whole year. In Pavakulam I wasn’t able to go out on the streets because it was too risky. I had to stay in the house at all times.
The applicant’s version of these claims materially altered in his interview with the Department, conducted on 11 February 2019. A transcript of that interview is not before the Court, however the differences are recorded in the delegate’s decision as follows (CB 141-142):
The applicant also stated in his written application that he was forced to report to an Army camp once a month to sign in and was often beaten by the Army officers. However at interview, the applicant stated he had to report morning and night daily. This is a significant difference and one which would have had a significant impact on his ability to attend school and work. I note that it would also have been difficult for him to maintain this as he stayed at different locations, presumably of varying proximity to the camp, as he claimed at interview. I accept that the applicant was required to report monthly to the authorities, as was common at the time. I do not accept that he was required to report every morning and evening to the authorities.
Inconsistencies also existed in his reports regarding his living situation after he was detained in 2009. In his written application he stated that he remained at his family home until relocating to his mother’s younger sister’s house in Pavakulam in 2012. He said that he and his family decided to do this as they were scared because people who were required to report often disappeared or were killed by the Army. He stated that it was risky for him to leave his aunts home, and therefore stayed in her house at all times, for the year that he was there. I note that this is at odds with his assertion that he continued to report morning and night to the camp at the school in Vavuniya up until the time he left Sri Lanka. It is also difficult to understand why he suddenly felt more at risk some three years after his detention when there had been no further problems, and why he even felt the need to go into hiding when he was reporting daily to the authorities anyway.
When asked at interview about how he maintained the twice daily reporting requirement when living at his aunt’s house, some 22 kilometres away, the application stated that he got the bus morning and night. He also said that to save money he would stay in town during the day. This response isn’t fitting with his assertion that he was fearful of the authorities and in hiding. I note that the applicant was also vague about how long it took to travel from his aunt’s house to school and therefore find it likely that any period of residence at his aunts occurred after he completed his schooling in December 2010.
At interview, he claimed that after his release from detention in 2009 he returned to his family home where he resided for one to two months before moving around from place to place before staying at his aunt’s house. He said that he did this as he was fearful that the authorities would return to his family home and detain him again. When asked about where he had stayed and how long for, the applicant’s responses were vague. In relation to the duration of time he stayed with friends, he initially said that he wouldn’t stay long as he didn’t want to raise suspicion with anyone and then said that he would stay with different friends anywhere from 6 to 8 months at a time.
Again, it is difficult to understand why he went into hiding at different locations, when he continued to maintain a public life visible to the authorities. He has said that he continued attending school until December 2010 and was then employed at Star Tailors in Vavuniya from April 2011 to April 2012. If he was truly fearful of the authorities to the point that he felt he needed to live transiently, it seems at odds that he would continue his education and employment and maintain his reporting requirements. While the security situation improved after the end of the war, military and security forces maintained a significant presence in the Northern Province and specifically Vavuniya. If the authorities really wanted him I believe they could have located him at either place. It also doesn’t make sense why he would be seeking to hide from the authorities while still reporting every morning and night, when they could have detained him and reportedly did physically harm him. Based on the above, I am prepared to accept that the applicant resided with his aunt for a period of time between after he finished his schooling in December 2010 and his departure from Sri Lanka in 2013. I do not accept that this was because he and his family felt that he was at significant risk of detention by the authorities but do acknowledge that safety and security considerations may have factored into this decision. I do not accept that the applicant lived a transient lifestyle moving regularly from house to house from December 2009 until his departure from Sri Lanka in 2013.
It is clear that the IAA rejected two specific elements of the applicant’s evidence where that evidence had materially changed from his initial interview. It did not accept that the applicant was in hiding between 2009 and 2013, and instead accepted the applicant’s earlier version of events that he had lived with his aunt for a year, but not in hiding. It also did not accept that the applicant was required to report morning and night to the authorities, and instead accepted the applicant’s earlier version that he had to report once a month. Those two versions were clearly inconsistent, and the applicant accepted at the hearing that there is an inconsistency between the applicant’s statement and what he said in his interview. Furthermore, the parties both agreed that the IAA was required to determine which of these versions it accepted, or determine that it did not accept either. That is not without importance. The IAA was, in effect, tasked with choosing which of the two versions of events which had been presented by the applicant was the more credible. In that respect, the IAA’s conclusions do not exist in a vacuum. They essentially reach the same conclusion as that reached by the delegate. The delegate’s decision set out in more detail than the IAA why the earlier evidence of the applicant was preferred, but the conclusion is the same.
As observed above, the applicant submitted that the IAA’s rejection of the version presented at interview was not credible, and an exaggeration lacked an evident and intelligible justification and was based on an unwarranted assumption. In written submissions, the applicant submitted that where an unwarranted assumption is made which leads to the rejection of a witness’s evidence, this may lead to the conclusion that the decision-maker has failed duly to consider the question raised by the material before it (citing BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [6]-[7] per Perram J (BOH17)). In BOH17, Perram J made the following observation (at [7]-[8]):
On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory…
…
Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW[2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal’s impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.
The applicant further submitted that an unwarranted assumption may disclose jurisdictional error where there is no evident or intelligible justification given for that assumption (citing EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451 at [34] per Halley J (EWH20); DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [45] per Kenny, Kerr and Perry JJ (DAO16); and BOH17 at [8]). In those cases, however, the unwarranted assumption in each case was easily ascertainable. In EWH20, the Court was satisfied that the Tribunal in that matter had relied upon an assumption that an old school friend of the appellant’s father would assist the appellant in settling in if returned to Liberia. The Court found that such an assumption could not be made “without an evidentiary basis and more detailed reasoning, and was not a matter of ‘ordinary human experience’” (at [50]). In DAO16, the Court considered the Tribunal’s rejection of evidence as untruthful from a number of witnesses who had provided statutory declarations that supported the appellant’s claim to be in a same-sex relationship. The Full Court found that the Tribunal’s rejection was irrational for a number of reasons, including that its reasoning was underpinned by a number of unexpressed and unwarranted assumptions, including an assumption that “if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men”. The Court observes that, in those matters, the nexus between the impugned assumption and a finding of irrationality or illogicality is easily ascertainable.
In BOH17, however, the Court made the following observation at [11]-[12]:
The question here, rather, is whether the Tribunal made an unwarranted assumption which, as I have explained above, devolves to inquiring as to whether the assumption was one which could reasonably be made (or which had an evident or intelligible justification).
The availability of a reasonable alternative hypothesis does not, on its own, demonstrate that the assumption made by the Tribunal was unwarranted in the sense of being unreasonable. As the cases to which I have referred show, something more is required. The appellant has not shown, for example, that the weight of evidence overwhelmingly supported her preferred hypothesis or that the assumption made by the Tribunal had at its foundation a false premise…
The applicant’s submission is that the unwarranted assumption in this matter is the IAA’s conclusion that the applicant’s account of events was “simply not credible”. This was, according to the applicant, because the IAA put forward no explanation or reasoning for why it considered this to be the case. It can be seen that this is a far more nebulous allegation of an unwarranted assumption than the examples in the cases relied upon by the applicant.
The Minister submitted, in written submissions, that the ground asserted in the application is based on a “misreading and/or oversimplification of the IAA’s reasons”. Furthermore, the Minister submitted that the IAA’s finding was “plainly open on the evidence and was one which a reasonable decision-maker could make”. In this sense, the Minister noted that the IAA accepted much of the applicant’s claims and the only claims that were rejected as not credible were the “simultaneous claims made in the SHEV interview that the Applicant both reported twice daily and was in hiding soon after his release in 2009 until he left Sri Lanka in 2013”. The Minister submitted that it was patently open to reject these simultaneous claims as not credible and such rejection was not reliant upon any assumption. The Minister further stated that the inconsistency between the claims made in the statement and the interview alone provided an evident and intelligible justification for the rejection of the inconsistent statements.
In the Minister’s oral submissions, Ms Battiste submitted to the Court that the sentence of “twice daily reporting and hiding from [authorities] soon after [the applicant’s] release in 2009” ought not to be read in isolation. Ms Battiste submitted that, whilst the sentence stands alone, it is to be read in the context of the decision as a whole, and that other aspects of the decision informing that conclusion can fairly be found in other parts of the decision.
It is clear to the court that the IAA made a credibility finding in relation to the claim by the applicant that he was in hiding and, during the same period, was reporting twice daily. In the Court’s view, such a finding has a clear internal logic. It is difficult to credit a claim that a person is reporting morning and night every day to the Sri Lankan authorities while at the same time claiming to be in hiding from the authorities. The applicant says that it is a mistake to assume that the Sri Lankan authorities alluded to are the same entity and the Court accepts this may be the case, although the applicant only referred to the SLA. In any event, it cannot be said that the IAA did this, given its distinction between the SLA and the CID within that same paragraph.
The IAA’s decision must be read fairly and as a whole, and it would be an error to isolate one or two sentences and strip all contextual meaning from them. Equally, the Court should not assiduously scour the remainder of the decision to artificially find a context which gives an unearned rationale to a finding. In this matter, there is no need to enter into such an exercise. There is, as stated above, an internal rationality to the IAA’s finding that the applicant’s claim that he was hiding from the Sri Lankan authorities whilst simultaneously reporting to them morning and night lacked credibility. That finding is strengthened when the lens is widened to consider the context within which that finding appears, firstly because, immediately before the impugned finding, the IAA in that paragraph accepts all of the applicant’s claims which had been consistently made. In determining between the two conflicting versions of the applicant’s claims, the IAA then rejects the later claim as exaggerated and lacking in credibility, which it was entitled to do. Furthermore, the preceding paragraphs make it abundantly clear that the IAA took the view that, whilst the applicant had been consistent about some of his claims, his claims relating to the adverse attention he had received from the Sri Lankan authorities were “much less consistent” and had “evolved”. Having regard to the IAA’s reasons as a whole, the Court accepts that the IAA’s concern in respect of the way in which the claims in this regard had evolved clearly foreshadows its finding that the applicant’s later version was exaggerated. In the Court’s view, this was entirely open on the evidence.
It is abundantly clear to the Court why the IAA reached the decision it did. The conclusion reached was manifestly open to the IAA. It was self-evidently based on a conclusion that a claim to be in hiding from the Sri Lankan authorities for a period of four years whilst simultaneously reporting to them morning and night lacked credibility. Furthermore, this was an exaggeration from the more credible claim made earlier by the applicant that he was required to report monthly and had stayed at his aunt’s for a period of time. This finding was open and obvious, and clearly has an intelligible justification whether viewed in and of itself or set against the broader contextual background of the IAA decision. The conclusion was not based upon any assumption, warranted or otherwise. The conclusion simply reflects the assessment of which of the two inconsistent versions put forward by the applicant was most credible.
In light of the above, no jurisdictional error arises in relation to ground one.
CONCLUSION
The application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the IAA.
Accordingly, the application is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 7 February 2025
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