Ele17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1091
•28 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ELE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1091
File number: SYG 3062 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 28 November 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to consider relevant information – whether Authority made an illogical or irrational finding – no jurisdictional error – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 476, 477
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
SZIWK v Minister for Immigration and Citizenship [2007] FCA 168
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 15 November 2023 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr G Pasas Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 3062 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
28 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. By application to this Court brought under s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of the Authority decision.
In his written application, the applicant raised two grounds which might broadly be understood as asserting jurisdictional error on the basis that the Authority failed to consider relevant country information and that the Authority made a finding without a plausible justification.
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Authority decision. The judicial review application is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia by sea in August 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 2 August 2016. In a statement provided with his visa application, the applicant claimed to fear harm in Sri Lanka on the basis of his real or imputed support of the Liberation Tigers of Tamil Eelam (LTTE) and his Tamil ethnicity.
The applicant attended an interview with an officer of the Minister’s Department on 13 February 2017 to discuss his claims for protection (protection visa interview).
On 21 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The Authority affirmed the delegate’s decision on 8 September 2017.
SUMMARY OF AUTHORITY DECISION
The Authority found that the applicant had given ‘generally consistent and plausible evidence’ in his visa application and at the protection visa interview in relation to events occurring between 2006 and 2012. The Authority accepted that the applicant’s father had disappeared and is believed to have been killed by the Sri Lankan Army (SLA), but was satisfied that the applicant had not been and would not now be suspected or imputed with any LTTE involvement arising from any family association.
The Authority was prepared to accept that, while the applicant was walking home from school one day, he was dragged into a van and blindfolded by unknown persons, who held a gun against his head, questioned him for four or five hours about whether he was involved in the LTTE and then released him unharmed. The Authority also accepted that the applicant’s mother reported this incident to the police, but the applicant was too scared to attend an interview at the police station. The Authority accepted the applicant’s submissions that the SLA had been known to operate in civilian clothing but found there was no other evidence to indicate the SLA would have had any interest in the applicant. The Authority accepted that the applicant may have believed that the SLA was involved in his abduction but was not satisfied that the SLA was behind the incident.
The Authority was not satisfied that these unknown persons had the level of interest in the applicant that he claimed. The Authority was prepared to accept that there were some visits by these unknown persons and that the applicant may have been harassed by unknown persons between 2010 and 2012, but did not accept that they were from the SLA. The Authority was also prepared to accept that the applicant’s mother was threatened in 2012. However, the Authority did not accept that the applicant had been the subject of any harassment or interest since 2012 and was not satisfied that the applicant was of any ongoing adverse interest to any person or group for any reason, or that the applicant’s mother and brother were living in hiding because of any adverse interest in him.
Based on country information reports by the Department of Foreign Affairs and Trade (DFAT), the United States Department of State (USDOS) and the United Kingdom Home Office (UKHO), the Authority was satisfied that the situation for Tamils in Sri Lanka had significantly improved and was continuing to improve. The Authority found there was nothing in the material before it that indicated the situation was stagnating or getting worse for Tamils in any area of Sri Lanka. The Authority was satisfied that the new government was taking steps to address past discrimination and violence, and that Tamils did not face a real chance of serious harm on the basis of ethnicity alone. Further, the material did not indicate that young Tamil males face a real chance of harm on the basis of age, ethnicity and geographic location alone. The Authority was satisfied that the applicant did not face a real chance of harm on the basis of being a Tamil, a young Tamil male from the Eastern Province or a Hindu.
The Authority accepted that the applicant departed Sri Lanka illegally and may be assessed by the Sri Lankan authorities as having sought asylum in Australia and questioned upon his return as part of the airport screening process. However, the Authority found that there was not a real chance the applicant would be harmed or mistreated because he is a returning asylum seeker.
Based on these findings of fact, the Authority found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act. The Authority relied on these findings, and further consistent findings, in not accepting that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. The Authority therefore found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The judicial review application was filed on 4 October 2017, which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application contains the following grounds of review:
1.The Second Respondent has reached a mistaken conclusion and failed to consider relevant material in determining whether the situation for Tamils in Sri Lanka is stagnating or getting worse.
Particulars
a)Paragraph 27 of the second respondent’s decision states ‘There is nothing in the material before me that indicated the situation is stagnating or getting worse for Tamils in any area of Sri Lanka.’ This statement is not supported by relevant country information.
b)There is country information which highlights the on-going and deteriorating situation for Tamils in areas of Sri Lanka.
2.The Second Respondent has failed to identify or provide plausible reasoning in relation to aspects of accepted claims by the applicant.
Particulars
a)The Second Respondent accepts claims made by the applicant that abducted and questioned, was harassed and some visits were made to his family home and that his mother was threatened in 2012.
b)The Second Respondent however does not accept that Sri Lankan Army was involved in these incidents, despite the applicants claims and provides no reasonable explanation for who or why these ‘unknown persons’ persecuted the applicant.
The matter was listed for a callover before me on 18 August 2023 and on that date I made an Order which, amongst other things, required the applicant to file any amended application, any further affidavit evidence and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the Court hearing, as required by the Order.
The applicant was given an opportunity to make oral submissions at the hearing.
There were two main issues that arose from the applicant’s oral submissions at the hearing:
(a)the applicant submitted that there had been further problems since the Authority decision and asked for an opportunity to provide evidence in relation to this; and
(b)the applicant said he wanted to speak with his lawyer before making submissions.
I address the grounds of application and the two additional issues that arose at the hearing below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of a court in a judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Authority’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shang Liang) at 272.
The Court can only grant relief to the applicant if the applicant establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
APPLICANT’S REQUEST TO ADDUCE FURTHER EVIDENCE IN RELATION TO ONGOING PROBLEMS IN SRI LANKA
The applicant submitted that the problems he described in his protection visa application are still going on and that there have been problems with his younger brother about which he has not yet given evidence. The applicant effectively sought an opportunity to adduce further evidence in relation to whether he meets the criteria for a protection visa.
As I explained to the applicant at the hearing, the Court does not have the power to consider for itself whether he meets the criteria for a protection visa and the Court does not consider the merits of the Authority decision. Instead, as discussed above, the Court is required to consider whether there is a jurisdictional error in the Authority decision.
Whether or not there is jurisdictional error in the Authority decision is to be assessed based on the circumstances that existed at the time of the Authority decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]. Therefore, any evidence that the applicant may wish to provide about the ongoing situation in Sri Lanka and about any difficulties his brother is now facing is not relevant to the issue to be determined by the Court. For this reason, I declined to give the applicant an opportunity to adduce further evidence.
APPLICANT’S REQUEST TO SPEAK WITH A LAWYER
The applicant submitted at the hearing that he could not tell the Court what the Authority did wrong, and said he needed to speak with his lawyer. The applicant does not have, and has never had, a lawyer on the record in this proceeding. The applicant’s request to speak with a lawyer is effectively a request for the hearing to be adjourned to give him time to appoint a lawyer and have a lawyer review his matter.
There is no evidence before the Court to support any request for an adjournment made by the applicant. Notwithstanding this, I asked the applicant at the hearing to explain to me why he had not already engaged a lawyer if he wanted the assistance of a lawyer with this matter. The applicant submitted that he tried to call and message his lawyer, but the lawyer did not respond. The applicant also submitted that he had been sick for the past four weeks, had a skin allergy on his face and tongue and was unable to speak.
It is always of concern when an applicant attends a hearing in a proceeding that has been on foot for six years and is not prepared for that hearing. It was additionally concerning to me in the present matter because I had convened a callover three months prior to the hearing, and it is my usual practice at callovers in migration matters to ensure applicants are on notice that if they want a lawyer to represent them, they need to take steps to appoint a lawyer as soon as possible. In the hearing, I accessed some notes taken by my associate during the callover which confirmed that I had raised with the applicant the need to take steps as soon as possible to engage a lawyer if that is what he wanted to do. When I raised this with the applicant at the hearing, he submitted that he could not hear the call clearly at the callover in August. This was not evident from the notes that I had before me at the hearing, so I indicated to the parties that I would review the audio recording of the callover before delivering judgment and invite further comment if I had any concerns.
I have reviewed the audio of recording of the callover. For much of the callover, it appears that the applicant was able to hear and understand without difficulty. There was, however, a point during the callover where there were significant difficulties with the audio connection. The Court adjourned to attempt to resolve the issues and the callover resumed with the applicant appearing by telephone rather than Microsoft Teams. The applicant confirmed that he was able to hear. After the callover resumed, I noted that the applicant did not currently have a lawyer in this proceeding and the applicant confirmed that he did not currently have a lawyer, but it appeared that he may need one. I indicated to the applicant that it was okay for him to represent himself in this proceeding. I also indicated that if he decided he wanted a lawyer, he should take steps to appoint a lawyer as soon as possible, because his lawyer would need time to review his case and prepare and it may be too late if he leaves it too close to the hearing. The applicant said ‘okay’ during and after this explanation. I am satisfied that the applicant was on notice that if he wanted a lawyer to represent him at the hearing, he was required to appoint a lawyer well before the hearing.
The Minister opposed any adjournment of the hearing to allow the applicant to now appoint a lawyer, noting that the applicant had had many opportunities to appoint a lawyer at an earlier time or to raise this matter with the Court prior to today’s hearing. The Minister submitted that it was not in the interests of the administration of justice to adjourn the hearing to permit the applicant to attempt to find a lawyer.
In deciding whether to grant an adjournment, I am required to act in a way that promotes the overarching purpose of the civil practice and procedure divisions. This overarching purpose is described in s 190(1) and (2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) in the following way:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Taking into account the overarching purpose, I agree that it is not in the interests of the administration of justice to adjourn the hearing to now afford the applicant an opportunity to seek legal advice.
First, an applicant does not have a right to legal representation in a migration proceeding: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4]; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24].
Second, the applicant has had ample opportunity to engage a lawyer prior to the hearing. As indicated above, the proceeding has been on foot for six years and the parties were given three months’ notice of the hearing date. The applicant was expressly told at the callover three months before the hearing that if he wanted to engage a lawyer, he needed to do so as soon as possible. Even if the applicant was able to provide evidence of the matters he raised at the bar table, the grant of the adjournment would not be warranted in this matter. At most, the applicant made an attempt to contact a lawyer and left a message but did not take any further steps to engage a lawyer when the lawyer he attempted to contact did not respond. While the applicant claimed to have an illness, his submission suggested that this illness only impacted him in the four weeks prior to the hearing, well after he should have engaged a lawyer if he wanted one.
Third, it is not evident that there would be any utility in adjourning the hearing. This is not a matter where, for example, an applicant has found a lawyer, who has identified a reasonably arguable case, and who is willing to represent the applicant if an adjournment is granted. Rather, there is nothing before the Court to suggest that the applicant would find a lawyer willing to represent him if the adjournment is granted or that any lawyer he does find would be able to identify reasonably arguable grounds.
Fourth, case management considerations, including the efficient disposal of the Court’s overall workload, weigh against granting the adjournment in the circumstances of this case.
In advancing a submission that refusing to grant the adjournment would not contravene the requirements of procedural fairness, Counsel for the Minister referred to the Minister’s model litigant obligations and submitted that in preparing for the hearing, he had not identified any jurisdictional error not raised by the applicant, and that it would be open to the Court to also review the Authority’s decision independently from the grounds raised by the applicant. I confirmed to the parties at the hearing that I would independently review the decision to see whether there is any obviously arguable jurisdictional error, as this is my usual practice where an applicant is self-represented.
I have not identified any obvious or obviously arguable jurisdictional error in the Authority decision. However, this is not something that I place any weight on in deciding not to grant the applicant an adjournment. While the Court will raise an issue with the parties if it sees an issue that amounts, or may amount, to an obvious jurisdictional error, it is not the role of the Court to make the applicant’s case for him. The Court is unable to review the matter with the same thoroughness that one would expect from a diligent lawyer acting for the applicant. The Court is limited to reviewing the documents in evidence before it, such as those in the court book, and does not have access, at least in this matter, to evidence such as transcripts or audio recordings of interviews conducted with officers of the Department.
CONSIDERATION OF GROUNDS IN THE JUDICIAL REVIEW APPLICATION
Ground 1: Did the Authority fail to consider relevant information?
By ground 1, the applicant asserts that the Authority reached a mistaken conclusion and failed to consider relevant material in determining whether the situation for Tamils in Sri Lanka is stagnating or getting worse. The particulars of the ground refer to [27] of the Authority decision, where the Authority said (emphasis added):
I am satisfied that the situation for Tamils in Sri Lanka has significantly improved and continues to do so. There is nothing in the material before me that indicates the situation is stagnating or getting worse for Tamils in any area of Sri Lanka. I am satisfied that the new government is taking steps to address past discrimination and violence and that Tamils do not face a real chance of serious harm on the basis of ethnicity alone. I also take into account that the materials do not indicate that young Tamil males face a real chance of harm on the basis of age, ethnicity and geographic location alone.
The particulars suggest that the applicant’s complaint is that the finding emphasised in bold in the above extract was not supported by country information and instead there is country information that highlights the ongoing and deteriorating situation for Tamils in areas of Sri Lanka.
The Authority’s finding at [27] needs to be read in the context of the reasons as a whole, and in particular in the context of [20]-[26]. The opening sentence of [20] reads:
Having regard to my findings that the applicant is not of any adverse interest to the authorities or to any other group or persons, I have considered country information in relation to the situation in Sri Lanka now, particularly in relation to young Tamil men from the Eastern province and Tamil Hindus.
The Authority then proceeded to consider country information from DFAT, USDOS and UKHO before expressing the conclusion, based on that country information, at [27].
The country information referred to at [20]-[26] of the Authority reasons logically supports the finding made by the Authority at [27]. The applicant asserted in his particulars that there is other country information that highlights the ongoing and deteriorating situation for Tamils in areas of Sri Lanka. However, he has not indicated what that country information is or whether it was before the Authority and there is no country information in evidence before the Court. The applicant has not established that there was country information before the Authority that the Authority was required to, but did not, take into account.
Further, the choice of country information, and the weight to be given to that country information, is ordinarily a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The sources of information relied on by the Authority in reaching its finding at [27] are all authoritative and recent sources. There is nothing before the Court to suggest that it was unreasonable for the Authority to rely on this country information.
Ground 1 does not establish jurisdictional error.
Ground 2: Did the Authority make a decision that was illogical or irrational?
By ground 2, the applicant asserts that the Authority failed to identify or provide plausible reasoning in relation to one aspect of his claims. The applicant asserts that the Authority:
(a)accepted that he had been abducted and questioned, was harassed and some visits were made to his family home and his mother was threatened in 2012;
(b)but did not accept that the SLA was responsible for these incidents.
The applicant’s complaint raised by this ground appears to relate to the Authority’s failure to accept his claim that the ‘unknown persons’ who were the perpetrators of the abduction incident were SLA members. The applicant asserts that the Authority provided no reasonable explanation for who these ‘unknown persons’ were, or why they persecuted the applicant, if they were not members of the SLA.
The Authority did in fact provide reasons for not accepting that the perpetrators of the abduction incident were SLA members. The Authority considered and was prepared to accept, at [11] and [12] of its reasons, the applicant’s claim that in around July 2010, he was taken by unknown men in a van while walking home from school, dragged into the van, blindfolded, held at gunpoint, questioned for four or five hours and then released. The Authority then said at [13]:
The applicant claims that he never saw the men and they did not identify themselves to him. While I accept his agent’s submission that the SLA has been known to operate in civilian clothing, there is no other evidence before me to indicate why the SLA specifically would have any interest in the applicant. I also note the applicant’s claim that there was a SLA camp opposite his home and I do not consider it plausible that the SLA would kidnap him from the street, rather than attend his home. However, the applicant has given evidence about facing harassment and suspicion from the local Sinhalese community, including being questioned about where he was going and having to take other routes to school to avoid disturbances. Although I accept that the applicant may believe that the SLA was involved in his abduction, I am not satisfied that the SLA was behind the incident. I find that the applicant was abducted and questioned by unknown persons.
The Authority referred to the reasoning at [13] again at [16] of its reasons in explaining why it was not satisfied the SLA was involved in the visits received by the applicant and the threatening of his mother in 2012.
I do not accept any suggestion made by the applicant by this ground that the Authority did not give reasons for not being satisfied that the SLA were the perpetrators of the incidents involving applicant that the Authority accepted. Reasons were clearly given at [13].
Having rejected the applicant’s claim that the perpetrators were not members of the SLA, the Authority was not required to provide any alternative explanation as to who the unknown persons were or why they persecuted the applicant if they were not the SLA. In reaching this conclusion, I have had regard to well-established principles relating to the fact-finding function of a decision-maker in a protection visa case. The Authority was required to consider the claims advanced by the applicant: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42]. In so doing, it was open to the Authority to attribute weight to the evidence before it and to consider the inherent improbability of events: Wu Shang Liang at 281-282. The Authority was not required to uncritically accept any and all claims made by the applicant: SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 at [20]. Further, it was for the applicant to provide evidence and arguments in sufficient detail to enable the decision-maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76].
Having considered:
(a)the applicant’s evidence that he did not see the men who abducted him and they did not identify themselves;
(b)that there was no evidence to suggest the SLA had any particular interest in the applicant;
(c)the implausibility of the SLA kidnapping the applicant from the street rather than his home, when there was an SLA camp opposite his home; and
(d)that the applicant had faced harassment and suspicion from the local Sinhalese community,
it was open to the Authority to not be satisfied that it was the SLA who abducted the applicant. Put simply, the Authority, while accepting that the applicant believed that the ‘unknown persons’ were from the SLA, was not satisfied on the evidence provided by the applicant that the unknown persons were in fact from the SLA. Having rejected the applicant’s suspicion that it was the SLA who were involved in the relevant events, the Authority was not required to otherwise identify the unknown persons who abducted the applicant, or their motives for doing so.
To the extent that the applicant’s ground asserts that the Authority’s decision was illogical or irrational, it is not established. There was a logical connection between the evidence before the Authority and the Authority’s decision and there was therefore room for a logical or rational person to reach the same decision as the Authority on the material before it: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135].
Ground 2 is not established.
CONCLUSION
I have found that the Authority did not make any jurisdictional error in reaching its decision. The application for judicial review is therefore dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 28 November 2023
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