EMS18 v Minister for Home Affairs

[2020] FCCA 548

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMS18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 548

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth) s. 473CB, s.473DD

Cases cited:

N/A

Applicant: EMS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 457 of 2018

Judgment of: Judge Vasta

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Perth

Delivered on: 13 February 2020

REPRESENTATION

Counsel for the Applicant: Mr F. Crowley

Solicitors for the Applicant: AUM Legal

Counsel for the First Respondent: Ms S. Oliver

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 30 August 2018, and amended on 16 December 2019 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,367.00.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 457 of 2018

EMS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 21 August 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, EMS18, a Protection Visa.  On 30 August 2018, the Applicant asked this Court to review that decision. 

2. The background to the matter is as follows. The Applicant is a 38 year old Tamil male, from the Vanni region in the Northern Province of Sri Lanka.  In 1995, his mother was arrested in Colombo on suspicion of The Liberation Tigers of Tamil Eelam (“the LTTE”) involvement because she was from the Vanni region.  It was claimed that she undertook unlawful work against the Sri Lankan Government and she was detained for two years.

3. In about 1996, the Applicant and his family were displaced to a village in the Mullaithivu District, which was where LTTE headquarters were located.  The Applicant said that he was exposed to LTTE recruitment lectures, and he decided to join the LTTE, which he did on 27 November 1999.  He was trained by the LTTE, and began active service with Division Charles A of the Sea Tigers Division around August 2000.

4. He moved supplies into LTTE controlled territory, mainly between Mullaithivu District and Batticaloa District, and Manner District and Kilinochichi District.  He was also sometimes required to serve in active combat roles in maritime battles and to work as a personal driver.  He also sometimes assisted recruits to enter the LTTE controlled territory by sea without passing through the army checkpoints.  At one point, he worked as a driver for an LTTE commander.  He had an LTTE nom de guerre and an identification number.

5. On 11 August 2007, during a sea battle off the coast of Trincomalee District, the boat he was serving on came under fire and he, the Applicant, was badly injured by a cannon shot.  He had many pieces of shrapnel removed from his arms and some were lodged in his neck and shoulder and could not be removed, and are still under his skin today.  He spent about 30 days recovering in medical care and after a short period at home, returned to the LTTE.

6. Around 2 November 2007, his younger sister’s fiancé, who was a personal assistant of a leader of the LTTE, was killed in a bomb attack.

7. The Applicant said, in May 2009, he deserted the LTTE and began looking for his family.  He surrendered to the authorities as a civilian with his family at Omanthai Checkpoint where he was identified as an LTTE combatant and detained for two weeks.

8. Sometime in June 2009, he was taken to Joseph Camp where he was detained for about three months, during which time he was tortured and interrogated about his LTTE involvement.  He was returned to a camp near Omanthai Checkpoint until about January 2011, at some point spending a further 10 days in the Joseph Camp.  From January 2011 to October 2011, the Applicant was in “rehabilitation” during which time he underwent intensive “interrogations” at two different locations and was sent again to Joseph Camp for about two weeks for “interrogation”. 

9. He was severely mistreated during “interrogations”.  He was questioned about his activities with the LTTE for information that might lead to the arrest of former combatants and the location of hidden weapons.

10. On release, in about October 2011, he was told he would receive assistance from the International Organisation for Migration Information Counselling and Referral Services, but he did not.

11. In November 2011, his family were released from the refugee camp, and they were resettled back in Kilinochichi, and the Applicant was reunited with them.

12. In November 2011, the Criminal Investigation (“the CID”), in civilian clothing, arrested the Applicant at his home on the discovery of hidden weapons in a well near his family farm.  They detained him at a CID Camp for 10 days and tortured him.  He was released with reporting obligations.  He signed in briefly but then he fled to stay with relatives. He said he did this after hearing a former cadre in the Sea Tigers had been arrested and, fearing that person would disclose things that the Applicant had not, he feared that he would then be found and punished for withholding information.

13. He said he hid for those seven months and then, in about June 2012, he legally travelled to India with the use of an agent who ensured his safe passage.  He was hiding in India but did not register his name as a refugee, as he feared being arrested and tortured given his profile.  He stayed in India for about 10 months.  He then travelled to Australia, in April 2013 by boat.

14. He said that from 2012 to 2013 while he was India, the CID frequently visited his home in Kilinochichi and questioned his sister about his whereabouts.  He said that she was tortured in connection with this.  He said that the CID mentioned his mother’s detention in 1995 and they knew about his, the Applicant’s, and his mother’s LTTE links.

15. He said in 2013, after being tortured, his sister escaped Sri Lanka to India and then on to the United Kingdom.  He said that his sister spoke to the media in the UK about Sri Lankan refugees and that the Applicant fears he would be identifiable as someone from a family against the government.

16. After his sister left Sri Lanka the CID, he claims, would question his family about his and his sister’s whereabouts; most recently in December 2016.  He said he claims that the CID have said that if they, the CID, found the Applicant or his sister, they would arrest them.  He also suspects that his girlfriend was killed by the army.  He says he fears the authorities because of his Hindu faith.  He says that he will be a failed asylum seeker.

17. The IAA thoroughly looked at these claims.  It must be said that the claim the Applicant made about his involvement with the Sea Tigers is a claim that had not been made before the IAA process began.  The IAA accepted that there were “exceptional circumstances” to warrant consideration of this new claim.  This meant, however, that much of the material that the Applicant had provided at his entry interview, his SHEV application, and his SHEV interview was, on the Applicant’s own admission, not correct.  The lawyers representing the Applicant had criticised the manner in which the Delegate had dealt with the Applicant, but the IAA did not accept this criticism.

18. The Applicant had claimed that his family had links to the LTTE.  He claimed that his mother was detained for two years in Colombo, as I have already noted.  The Applicant said that his mother and father are still continually questioned by the CID about the Applicant.  The IAA was willing to accept that the mother was detained in 1995, but did not accept that she continued to be of interest to the authorities, especially since her release was over 20 years ago.

19. The Applicant claimed that his older brother was a photographer for the LTTE, but that he was not targeted because he was married.  The IAA considered it implausible that he would not have been harassed if suspected of LTTE involvement simply because he was married.  The IAA did not accept that the brother had an adverse security profile.

20. The Applicant claims his sister was engaged to a personal assistant of the high-level LTTE member, and that the fiancé was killed in a bomb blast in 2007.  The Applicant provided an obituary with a large photo of an LTTE member to support his claim.  He said that this person in the photo was the fiancé of the sister, who died in the bomb blast.  One of the photos that the Applicant provided purports to depict his sister standing behind one of the very high-ranking LTTE leaders at the coffin of the man who is her dead fiancé. 

21. The IAA was prepared to accept that the fiancé of the sister of the Applicant was an LTTE member and died in a bomb blast in 2007, but did not accept that he was a high-ranking LTTE member.  The IAA was willing to accept that the Applicant’s sister is in the United Kingdom and that she has protested about Tamil rights whilst over there.

22. The Applicant claims that his ex-partner was killed by the army.  He had produced photographic evidence of being in a photo with his partner and then another photo of his partner, who is obviously in the photo, dead.  The Applicant claimed that she was killed by the army.  The IAA considered that that claim was speculative, and the Applicant did not indicate how he knew this.  The Applicant stated in the SHEV interview that he found that picture on the internet.  The Applicant did not say that her death was linked to him in any way, and the IAA did not accept that her death was linked to the Applicant.

23. The Applicant said, in his interviews, that his whole family was targeted because of links to the LTTE and that they were branded “an LTTE family”.  The IAA concluded that the Applicant’s parents and brother still live in Sri Lanka, and apart from the mother’s detention 21 years ago, there was no evidence to indicate that they, the family, have been detained or harassed by authorities.  The IAA did not accept the claim of the Applicant being part of “an LTTE family”.

24. The IAA generally accepted the submissions given to it by the Applicant’s representative as to the Applicant’s LTTE involvement.  This included the injuries received from a cannon shot.  The IAA accepted that the Applicant surrendered as a civilian to the authorities in May 2009 and he was identified as an LTTE member.  The IAA accepted that he was detained until October 2011 and was severely mistreated during his time in detention.  As part of his detention, the Applicant spent some 10 months in “rehabilitation” ordered by the authorities.

25. The IAA had access to country information that indicated that, at the end of the war, a large number of LTTE members were arrested and detained by security forces.  About 13,000 LTTE members went through the “rehabilitation” program.  A smaller number of high-profile suspects were prosecuted through Sri Lanka’s court system and while low-level members may have been sent to “rehabilitation”, they were generally not prosecuted.  For most “rehabilitees”, the program ran for one year but for those considered most radicalised, it was extended to two years.

26. The Applicant had not claimed to have been charged or to have attended court in connection with his detention, and the period of “rehabilitation” was only 10 months.  Because of these factors, the IAA considered that the authorities viewed the Applicant as a low-level LTTE member.

27. The Applicant has claimed that after this, he was detained and severely mistreated by the CID, because of the discovery of hidden weapons on a well near his family farm.  He said that he was released after 10 days with reporting obligations.  This was in November 2011.  The IAA accepted this claim.

28. The Applicant alleged, as I have already recounted, that he heard that a former colleague had been arrested and he feared that this colleague would disclose things that the Applicant had not disclosed to the authorities.  He said that he feared that the authorities would then come after him to punish him for withholding information.  He said that he fled to another village and hid.

29. The IAA noted that the Applicant had been inconsistent in talking about his movements after this particular time that he fled.  The IAA did not accept that the authorities were after the Applicant, which caused him to leave, but the IAA accepted that the Applicant did in fact leave to go to another village.

30. Even though the Applicant claimed to have been in hiding, the IAA noted that the Applicant had a passport issued to him in January 2012 and a driver’s licence issued to him on 17 May 2012.  The IAA found this to be inconsistent with a claim that the Applicant was still wanted by authorities in connection with his adverse security profile after his release in November 2011.

31. The IAA considered it highly improbable that, if the Applicant feared he was still wanted by authorities and if he actually was of genuine interest to the authorities, that he would have even applied for, let alone been actually issued, with a passport that allowed him to leave the country.  The IAA noted that the issuing of the passport so shortly after his release in November 2011 was consistent with him only being considered to have low-level involvement with the LTTE, and being no longer of adverse interest to the authorities at that time.

32. The Applicant claimed to have travelled to India in June 2012 on that passport.  The Applicant said that he stayed in India for 10 months before coming by boat and arriving in Australia in April 2013.  The IAA noted that the Applicant did not register as a refugee whilst he was in India.

33. The Applicant said in the SHEV interview that his brother had bribed officials to ensure the Applicant’s smooth passage out of Sri Lanka and into India.  The Delegate said that he had concerns about this claim because it was not raised earlier.  The Applicant said he had mentioned this in the arrival interview. 

34. In the hearing before me, the representative of the Applicant eventually conceded that the Applicant did not say anything in the arrival interview that was not recorded, but still maintained that he did not make more detailed claims in that interview because he had been asked to be brief. 

35. I will return to this point when looking at the grounds of the application. 

36. The IAA did not accept that the Applicant’s brother bribed officials so that the Applicant could travel to India without harassment by the authorities.

37. The Applicant claimed that the authorities visited his home frequently after he left, and then more so after his sister left in 2013.  In the SHEV interview, the Applicant claimed that the authorities had tortured his sister when questioning her about his, the Applicant’s, whereabouts and that that was why she ended up leaving Sri Lanka.  The IAA noted it was unclear why the authorities would torture the sister in connection with the Applicant’s disappearance, and why they would single her out, and not also mistreat other members of the family.  The IAA found this claim implausible and did not accept it.  The IAA also did not accept that the authorities had come to the Applicant’s house looking for him because they did not accept that the Applicant had an adverse security profile.

38. The IAA then looked at the situation of the Applicant being returned to Sri Lanka as having been a failed asylum seeker.  The IAA had regard to a large amount of country information as to the situation in Sri Lanka, especially since the election of the Sirisena Government.  The IAA noted the role that Tamils now had in the political dialogue and how their influence is slowly growing in Sri Lanka.  The country information has spoken of the fact that being of Tamil ethnicity does not, in itself, warrant international protection.

39. The IAA looked at what would occur to the Applicant upon his return from Australia.  However, the Applicant did leave Sri Lanka legally on his own passport, even though his original passport is no longer with him.  The IAA noted that there may be further investigations to ensure that the Applicant is not trying to hide his identity, but overall, the country information is that returnees are not mistreated during processing at the airport.  There is no evidence that suggests that the Applicant has a criminal or terrorist background, so there would be no harm given to him on that account.

40. The IAA then concluded that the Applicant did not meet the criteria of “refugee”. 

41. The IAA then looked at the complementary protection criteria, and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, that there was a “real risk” that the Applicant would suffer “significant harm”. 

42. Having come to those conclusions, the IAA affirmed the decision of the Delegate.

43. There are four grounds that are contained in an Amended Application, filed on 16 December 2019.  Those grounds are:

    1A. The Second Respondent’s (IAA) decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction, because the Secretary failed to fulfil her duty under paragraph 473CB(1)(c) to provide relevant material to the IAA.

    2A. The IAA’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction because the IAA’s misconstrued or misapplied its discretion under section 473DD in declining to receive so-called “new information”.

    3.A The IAA’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction because the IAA unreasonably failed to exercise its discretion under subsection 473DC(3), or to consider whether to exercise its discretion, to invite the Applicant to give the IAA information or to attend an interview.

    4.A The IAA’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction because its finding that the Applicant’s deceased fiancé was not a ‘high ranking LTTE member’ (CB 188 [30]) or its failure to be satisfied that it was so, did not have an intelligible justification, or was capricious.

44. Even though there are four grounds, there are really only two factual matrices that underpin those four grounds.  To understand the first ground, one must take note of this factual scenario.

45. The Applicant was interviewed by way of entry interview.  Such interview is given in two parts.  Sometimes those two parts occur on the same day, straight after each other, but in this case the interviews were done in this way:  Part 1 was completed on 15 June 2013, and Part 2 on 23 August 2013.

46. Whilst these interviews are actually audio-recorded, they mainly consist of an interviewer filling out a pro-forma questionnaire.  That pro-forma questionnaire, which is of some 19 pages, is at Court Book 1 to 19.  As such, the completed questionnaires are seen as “transcripts” of the interview.

47. The IAA was given the audio recording for Part 2. Part 1 was not given to it.  The IAA then made inquiries as to where the audio recording for Part 1 was.  The information given back to the IAA was that Part 1 was “unavailable”.  What is actually meant by “unavailable” is not certain, other than the audio recording is not produced to the IAA.  It could be speculated the recording has been lost, or erased, or damaged, but that is only speculation.  The fact is, it has not been given to the IAA.

1. Pursuant to s.473CB(1)(c) of the Act, the Secretary must give to the IAA “any material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review.” 

2. The Applicant submits that the recording of Part 1 must have, at some time, been in the possession of the Secretary.  Because the Secretary did not give that material to the IAA, this has caused the IAA’s consideration to be vitiated.  The Applicant submits that this is an error that is material.  He says this because of what is said in paragraph 22 of the reasons of the IAA.  That paragraph reads, relevantly, as follows:

   In his SHEV application the applicant said, he was asked to only give a brief description of his claims in his arrival interview.  The Department did not explain what was relevant and what he needed to tell them.  The applicant’s arrival interview was in two parts, the first part was conducted on 15 June 2013 and the second part on 23 August 2013.  I have a transcript for both parts and have listened to the audio for the second part (the audio for the first was not available) and it does not appear that the applicant was asked to be brief.  Further, the interviewer probed the applicant when he provided a brief response to a question; what the Department needed to know was made clear by the interviewer’s questioning.  I found some of the applicant’s responses equivocatory.  For example, when asked how long he was displaced he said, one year,   that his family returned to their home but he was not there  he was visiting them and he was going to Jaffna and other places and having difficulties and visiting relatives.  In an effort to elicit more detail the interviewer asked what places he visited and after a short delay the applicant appeared to state he joined the streets and “they were together” and that he had to pass through a checkpoint.  I do not accept inconsistencies or gaps in his arrival interview were due to him being asked to be brief or as a result of the Department not telling him what they needed to know…

3. The Applicant submits that this all could have been cleared up if the audio of Part 1 had been available, and that could have been an easy way to check whether the Applicant had been actually told to be brief.  The Applicant submits that this was part of a general finding of disbelief of the Applicant.

4. However, the IAA does not actually say that the Applicant was definitely not told to be brief.  The IAA says that, in listening to the second part, “it does not appear that the applicant was asked to be brief” and then says that they “do not accept that inconsistencies or gaps were due to him being asked to be brief or as a result of the Department not telling him what they needed to know.”  There is no positive finding that the Applicant was not told to be brief.

5. I also note that the relevance of this observation seems to amount to nothing when one considers the rest of the paragraph, and the fact that the IAA accepted the late claims of the Applicant that had never been raised before.  The IAA said this, at the rest of paragraph 22:

   … After the delegate’s decision was made, the applicant told the IAA that he had not told the complete truth to the Department and provided a number of new claims;  I consider it more plausible that any inconsistencies or gaps in his evidence at the arrival interview are attributable to this rather than the issues he claims.

6. The Applicant points to the credibility findings that the IAA has made about the family’s LTTE connections.  The Applicant’s submission is that if the Applicant had actually been told to be brief, it would have made the claims regarding his family easier to accept.  I do not accept that submission.  The aspect about “being brief” played no further role in the assessment made by the IAA, especially when it had accepted the late claims of the Applicant as to his time with the Sea Tigers and why it was that he had not made those claims before.

7. Even if there were a credibility corollary to the LTTE family claims, the most telling blow to the credibility of the Applicant was that the Applicant only had 10 months in “rehabilitation” and was able to obtain a passport and a driver’s licence so soon after his “rehabilitation”.  The Applicant’s claim was that he was of very high rank within the LTTE and so were his family, and this is why he fears going back to Sri Lanka. Those objective matters, that is the fact he spent 10 months in “rehabilitation”, was able to obtain a passport, and was able to obtain a driver’s licence, as I say, are the most telling blows to the credibility of that claim.

8. Notwithstanding that the Applicant has abandoned this point, I do note that the Applicant told the Delegate that he had made a claim in his arrival interview that his brother had bribed the officials to allow him to leave the country.  That is a very telling piece of information, and the fact that it is not recorded on the “transcript” is telling.  I note that when one looks at the claims that the Applicant made from Question 29 onwards, this response is seen at Question 32, under the heading Reason to Leave:

   Why did you leave your country of nationality (country of residence)?

   Main reason

   I worked for LTTE in Sri Lanka, as a driver, as well as all my family members worked for LTTE.  There were some rifles found at a “well” near my house, when we were digging the ground to rebuild the area.  This was reported to the police who came and took me to question further about other location of such arms and ammunitions.  The CID kept me detained and beat me for the 10 days and after that I was released and was asked to report every week and sign.  I reported and signed for the first week and then disappeared.  After that basically I was in hiding and went to India (I paid an agent to arrange a passport and travel to India) on 06/2012 and I stayed in India for next 10 months and came to Australia from India. 

   Main reason to Leave India - I didn’t register myself with Indian Government to stay in India and the people I was staying with they suggested I should leave because it was not as I worked with LTTE and police in Tamil Nadu, India will harass him hence I left India and came to Australia.

9. As I say, the fact that the Applicant said that he had an agent arrange a passport and travel to India is recorded, but there is no record of the Applicant saying that his brother had bribed an official.  It was open to the IAA to reject the Applicant’s evidence in relation to this point.

10. The Applicant made the submission that the person who was taking this could well have dishonestly decided not to type that answer, notwithstanding that it was made, and the only way that one would ever know the truth was to listen to the recording, but the recording was not available.

11. All of those points, whether they be able to be answered or not, only go to materiality. And they only go to materiality if it is that there was a failure by the Secretary to comply with s.473CB of the Act.

12. I do not find that there was such a failure.  The recording was “unavailable”, which means that it is not in the possession and control of the Secretary, even though it may once have been in that person’s control.  The Secretary cannot give to the IAA something that it actually does not have.

13. The legislation does not say that the Secretary must give to the IAA all relevant material that it “should have”. But instead, says it must give all the relevant material that it “does have.” As I am not of the view that there has been a failure by the Secretary, I do not find that s.473CB of the Act has been breached. Therefore, I do not find that ground one has illustrated a jurisdictional error.

14. The background to ground 2 was a misapprehension by the Applicant as to what the IAA has actually written.  At paragraph 17 of the reasons, the IAA has said this (when talking about whether to accept new information, particularly an article that had been supposedly written that would show that the fiancé was a higher ranking LTTE member), the IAA wrote this:

    I do not accept the applicant feared mentioning these details about his sister and providing these documents to the Department before the delegate’s decision as they do not directly relate to the applicant’s own claimed membership of the LTTE and he provided other similar details about his sister to the Department.  Further, both articles were published, and the video was published on the internet, years before the delegate’s decision was made and the applicant has not otherwise explained why they could not have been provided earlier.  In relation to the article about her ex-fiancé the applicant’s lawyers submit that this was shown to the delegate before his decision was made however having listened to the audio of the SHEV interview this does not appear to have been the case...

15. The contention of the Applicant is that the IAA declined to consider the contents of the article and used s.473DD of the Act to justify that decision. The Applicant contends that the article was already before the Delegate and therefore, was already before the IAA. Therefore, the non-consideration of that article was an error.

16. If one goes to the transcript of the SHEV interview, it can be seen at one stage that the Applicant was showing a number of photos.  The Delegate said to the Applicant that he will look at these photographs at another stage if it is that the Applicant sends those to him after the hearing.  The conversation is only about photographs. 

17. When one goes to the Court Book, one sees that, at page 94 of the Court Book, there is an email sent on 28 August 2017, just after the interview, by the Applicant to the Delegate which says:

    Dear (delegate),

    Please see the document attached for the pictures I provided during my interview.

    Yours truly,

    (Applicant)

18. The last photograph is the obituary of the sister’s fiancé.  This is the one that shows the person in LTTE gear.  As well as this is a video clip containing an interview of the Applicant’s sister for a Tamil TV station in the UK.  There is no article attached to this.  In submissions made by the Applicant’s representatives to the IAA at Court Book 125, paragraph 10, the representatives say this:

    Following the interview, the Applicant provided a document showing pictures of his sister [name redacted] and his sister’s former fiancé, [name redacted] (whose LTTE nom de guerre was ‘redacted’), who was a personal body guard to Tamilchelvan, a senior LTTE official, including an obituary to Tamilchelvan which includes an image of [redacted] in a LTTE uniform.  This document is also available online: annexed hereto and marked “C” is a printout of the complete article, including an enlarged image of the [redacted]’s photograph. …

19. That would seem to be conclusive proof that this article was not given to the Delegate. This article was only made available after the Delegate had given his decision and therefore, the article was “new information” as that term is used in s.473DD of the Act. Because it is new information, it must be dealt with according to those provisions. The IAA has not “falsified the Applicant’s contention that the article was not new information”. The IAA has actually made a correct observation. The article clearly was new information. The manner in which the IAA then proceeded pursuant to s.473DD of the Act cannot be criticised.

20. The misapprehension is not that of the IAA.  It is of the Applicant and his legal representatives.  Ground 2 therefore demonstrates no jurisdictional error.

21. Ground 3 is based on a premise that the IAA should have had the recording of Part 1 available to it because such recording was a material consideration.  It is also based on a premise that the article upon which ground 2 is based was actually before the IAA who had erroneously classified it as new information.  If those two premises had been established, the Applicant submits that it was unreasonable for the IAA not to have exercised their discretion under s.473DC(3) of the Act and invited the Applicant to give the IAA either further information or, more properly, it has been argued, an invitation to attend an interview.

22. It is trite to say that the discretion to invite an Applicant to attend an interview is seldom exercised because there needs to be exceptional circumstances.  The Applicant submits that the two premises constituted such exceptional circumstances.  But as has been illustrated in the course of these reasons, neither premise has actually been satisfied.  Because of this, there are actually no circumstances that would seem to justify the IAA extending an invitation for an interview.

23. There has been no complaint about the manner in which the IAA has decided not to exercise that discretion apart from reference to these two premises.  As the premises have no foundation, ground 3 does not illustrate jurisdictional error. 

24. Ground 4 is expressed as a cavilling with the finding of the IAA that the late fiancé of the sister of the Applicant was not a high-ranking LTTE member.  However, there was no “finding” that this man was not a high-ranking LTTE member.  The IAA said that they do not accept he was a high-ranking LTTE member.  Non-acceptance of a fact is not a finding that the fact is wrong.  It is not a finding that the fact is incorrect.  It is not a finding that the fact does not exist.  It is not a finding at all.  It is an expression of non-satisfaction.  It is for the Applicant to satisfy the IAA of the claims that are made.  All the IAA has expressed is that it has not reached that level where it can say that it is satisfied or does accept a particular fact.

25. Such a conclusion could never be described as capricious.  Such a conclusion could never be said to not have an intelligible justification.  As it was clearly open for the IAA to not accept the contention of the Applicant, there can be no jurisdictional error. Ground 4 also fails.

26. I therefore dismiss the application with costs in the sum of $7,467.00.

I certify that the preceding seventy seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 16 March 2020