ENF17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 828
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)ENF17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 828
File number(s): SYG 3123 of 2017 Judgment of: JUDGE LAING Date of judgment: 6 September 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA made findings that were unreasonable, irrational or illogical – application dismissed Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729
Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 21 August 2024 Place: Sydney Counsel for the Applicant: Ms N Wootton Solicitor for the Applicant: Varess Counsel for the First Respondent: Mr H Rogers Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3123 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENF17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
6 SEPTEMBER 2024
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 LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sri Lanka who came to Australia as an unauthorised maritime arrival in 2013.
The applicant applied for a protection visa on 9 November 2016.
On 10 March 2017, the Delegate refused the application. The matter was then referred to the IAA for review.
The IAA affirmed the Delegate’s decision on 14 September 2017.
THE IAA’S DECISION
The IAA observed that it had received submissions on 4 April 2017, which included some new information. The IAA accepted that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to new information relating to the applicant’s role with the Liberation Tigers of Tamil Eelam (LTTE). However, the IAA was not satisfied that s 473DD was met in relation to certain country information accompanying the applicant’s submissions (at [4]-[6]).
The IAA accepted that:
(a)the applicant was a Tamil from the area claimed (at [8]);
(b)the applicant's uncle and two cousins were LTTE members (at [9]);
(c)two of the applicant’s relatives died in the war and that one of his cousins surrendered and had not been seen since (at [9]);
(d)the applicant's brother worked for the LTTE intelligence wing and had been missing since he was reportedly arrested (at [10]);
(e)as a teenager the applicant completed basic training with the LTTE as a driver, building bunkers, delivering food and monitoring the highway for army movements (at [11]);
(f)the applicant had an information gathering role with the LTTE from 2005 to 2006, following which his main task was to recruit new members (at [12]-[14]);
(g)from 2006, the applicant carried an LTTE card bearing his photograph and a nom de guerre (at [13]);
(h)the applicant received weapons training (at [15]);
(i)the applicant and his family were displaced in 2009, with the applicant being taken to a different camp before joining his family. However, the IAA did not accept that this was because the applicant was a person of concern (at [16]);
(j)the applicant lived with various friends after leaving a camp in 2010 (at [20]);
(k)the applicant was questioned and mistreated by the Criminal Investigation Department (CID) in 2012, which asked about weapons, his brother and others (at [22]);
(l)the applicant’s father was also questioned around this time (at [22]); and
(m)the applicant travelled to India in 2012 before travelling to Australia (at [24]).
However, the IAA did not accept that:
(a)the applicant escaped from a camp in 2012 (at [20]);
(b)the applicant lived in hiding for fear of being detected by the authorities after leaving the camp (at [21]);
(c)the applicant was of adverse interest to the authorities after being questioned in 2012, or that he was further questioned or required to report to the CID (at [23]);
(d)the authorities came to the family home to enquire about him in 2012 or again in 2016 (at [23]); or
(e)the applicant’s name had been placed on a watch list (at [24]).
Having regard to the above, the IAA was not satisfied that the applicant would come to the adverse attention of the authorities on return to Sri Lanka. The Tribunal did not accept that the applicant had been or would be imputed with an LTTE profile, that his name was listed on a wanted list or that he would be detained, harmed or unable to work on that basis (at [27]-[33]).
The IAA accepted that, as a returnee travelling on temporary travel documents, the applicant could be subject to an investigative process on arrival to confirm identity and this may take several hours to complete. The IAA did not accept that this would result in serious or significant harm. The IAA also considered that there was no evidence that such processes were selectively enforced or applied in a discriminatory manner (at [34]-[35] and [43]-[44]).
The IAA considered that there was no information before it to indicate that departing India illegally would attract adverse attention on return to Sri Lanka (at [36]).
The IAA did not accept that in the return process the applicant would be identified as a person of interest or that his details had been placed on a list of people of interest. The IAA considered that there was no indication that the applicant's status as a failed asylum seeker would bring him to adverse attention on return to Sri Lanka. The IAA concluded that the applicant would not face a real chance of harm in Sri Lanka as a young Tamil asylum seeker from the former LTTE controlled north, because of his past LTTE activities, or for reason of his family links to LTTE members (at [37]-[38]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the criteria for the protection visa. Accordingly, it affirmed the Delegate’s decision (at [39]-[45]).
PROCEEDINGS BEFORE THE COURT
The applicant commenced the current proceedings through an application filed on 9 October 2017. The applicant ultimately relied upon an amended application filed on 24 July 2024 containing the following ground:
1.In affirming the Delegate’s Decision, the Authority made findings which were unreasonable, irrational or illogical.
Particulars
a.The Authority concluded that the questioning of the applicant in May 2012 was part of regular monitoring activities.
b.The Authority rejected the applicant’s claim that he was required to report monthly to the CID and was called for questioning a further three or four times.
c.The findings in (a) and (b) above are irrational, as the “regular monitoring activities” which the Authority accepted [as noted in (a)] did, on the evidence before the Authority, comprise of the monthly reporting which the Authority rejected had occurred [as noted in (b)].
d.The Authority concluded that the applicant was not of interest to the authorities after being questioned based on the Authority’s conclusion that the applicant was released and not charged with any offence and:
i.in doing so the Authority ignored and/or rejected on an irrational basis [as articulated in (a)-(c) above] the applicant’s claim that he was required to report to the CID and was further questioned; and
ii.there was no logical basis in the evidence for the conclusion that the applicant was not of interest to the authorities.
e.The Authority concluded that the applicant was not imputed with an LTEE profile.
f.The conclusion noted in (e) was illogical, irrational and unreasonable in circumstances where the Authority accepted that:
i.the applicant had been questioned by the CID in May 2012 about his brother (an LTTE member) and was mistreated by the CID;
ii.the applicant had an information gathering role within the LTTE;
iii.the applicant carried an LTTE card bearing his photogaph and a nom de guerre; and
iv.the applicant was involved in recruiting new members of the LTTE and other tasks, and received weapons training.
g.The Authority placed significant weight on the applicant’s ability to depart Sri Lanka legally in December 2012 as belying his claim that his name had been placed on a watch list, and:
i.the applicant’s claim that his name was placed on a watch list was not limited to it having been placed on that list before his departure from Sri Lanka in 2012;
ii.there was no logical connection between the applicant’s legal departure in December 2012 and the Authority’s conclusion that his name was not therefore placed on a watch list;
iii.in any event, there was no logical or rational basis in the evidence for the conclusion that the applicant departed Sri Lanka legally in 2012.
h.The applicant relies on particulars (c), (d), (f), and (g) above both individually and cumulatively.
Some relevant law
The applicant accepted that in considering grounds of unreasonableness or illogicality, the Court’s jurisdiction is strictly supervisory, and does not involve the Court reviewing the merits or substituting its own view as to how a power should be exercised: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [59] (Allsop CJ, Griffiths and Wigney JJ); Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [70] (Markovic, Meagher and Kennett JJ).
The applicant relied upon what was said by Gordon J in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 at [43] (footnote omitted):
43. … unreasonableness is concerned with both outcome and process.9 Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached.
The applicant also relied upon the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”, before stating (at [135]):
135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The applicant acknowledged that questions of unreasonableness fall to be determined having regard to the terms, scope and policy of the statutory source of the power exercised: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ). The answer to such questions depends upon the circumstances of the individual case: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [48] (Perry J).
Particulars (a) to (c): “regular monitoring activities”
The “first illogicality” relied upon by the applicant concerned the IAA’s rejection of the applicant’s claim that he was required to report monthly to the CID and was called for questioning a further 3 or 4 times. That finding, it was observed, was made alongside an acceptance that the applicant was questioned by the CID in May 2012, which was found to have been part of “regular monitoring activities”.
The applicant observed that in his statement of claims (CB 48), he had stated:
25.In May 2012, the Criminal Investigation Department (“CID”) then started harassing my family. They questioned us aggressively about my brother's whereabouts. My father and I told them that we were told that he was arrested by the SLA. The CID said that SLA did not arrest my brother. They believed that my brother was hiding somewhere. I still do not know the truth but we have not seen or heard of my brother since 2007.
26.Every month I was required to report to the CID and they questioned me 3- 4 times more at the CID office. They beat me and threatened to kill me.
The applicant relied upon a transcript of his protection visa interview that is in evidence (Transcript). In his interview, when asked about “the issues” he had with the CID, the applicant stated: “I was also asked to present at their camps on 3 or 4 occasions, one time I was assaulted” (Transcript 48.5-6). He was then asked when this was, and he answered “after 2010” (Transcript 48.26). The applicant subsequently stated: “[s]o, after 2010 was when they questioned me, and after they questioned me, they also came to question my family, which was in 2012 subsequently” (Transcript 48.38-39).
In written submissions, the applicant contended that the difficulty with this was as follows:
25.The difficulty is this. The IAA accepted that the applicant had been questioned in May 2012 by the CID. But the only “regular monitoring activities” of which this could have formed a part, on the evidence before the IAA, was the monitoring of which the applicant complained: being required to report at the CID office monthly and being questioned three or four times in that context. Yet the IAA rejected the suggestion that he was required to report monthly to the CID and called for questioning a further three or four times. There is not a skerrick of reasoning in support of the rejection of the applicant’s claims in this regard, nor any reasoning that could explain how the IAA could at once accept his evidence about questioning in May 2012 as being part of regular monitoring, and yet reject the evidence of that regular monitoring, by which he was required to report monthly and was questioned 3 or 4 times.
The applicant submitted that this was a matter in respect of which there was “no logical connection between the evidence and the inferences or conclusions drawn”, and critically, an illogicality between two concurrent conclusions of the IAA.
The impugned reasoning of the IAA was as follows (footnotes omitted):
22.Noting that the authorities maintained a strong presence in the north it is plausible that the applicant may have been questioned by the authorities. I accept as plausible that the applicant was questioned by the CID in May 2012 and that they asked about his brother. I accept as plausible that the applicant was mistreated by the CID, noting the widespread reports of the impunity with which the authorities acted in mistreating the civilian population9. I accept that the CID asked the applicant about weapons and to provide them information about other people, noting that country information reports on the use of informers from the Tamil community. I accept that his father was also questioned at this time. However, although the authorities had wide sweeping powers under the Prevention of Terrorism Act (PTA) to detain suspects at the time, I note that the applicant was released and not charged with any offences and I find that this indicates the authorities did not have an adverse interest in him after initial questioning.
23.I note his concern that the authorities would become aware of the LTTE card, but as already noted he claims this was known to other villagers during the war but there is no indication that it came to the attention of the authorities the end of the war when his local area came under army control, or in the three years following. I find that the questioning in May 2012 was part of the regular monitoring activities undertaken by the authorities in the north and I am not satisfied that it indicates he was imputed with an LTTE profile at the time and I am not satisfied that he was of adverse interest to the authorities after being questioned. It follows that I do accept that the applicant was required to report monthly to the CID, or that he was called for questioning a further three or four times. Nor do I accept that the authorities came to the family home to enquire about him in 2012 or again in 2016.
I accept the Minister’s submissions regarding why this part of the IAA’s reasoning was not illogical. The applicant’s understanding of the IAA’s reference to “regular monitoring” appears to be a reference to “regular monitoring” of the applicant. However, this is not what the IAA appears to have been referring to in [23]. At [23], the IAA found that the applicant’s questioning in May 2012 “was part of the regular monitoring activities undertaken by the authorities in the north” (emphasis added). This connected with the IAA’s consideration of country information at [21]-[23] indicating that the authorities had “maintained a strong presence in the north” at the time, including mistreatment of the civilian population. This was the basis upon which the IAA accepted that the applicant had been questioned and mistreated on one occasion by the CID in May 2012. However, having regard to country information, the IAA considered that the fact that the applicant had been released and not charged indicated that the authorities did not have an adverse interest in the applicant after initial questioning. This was notwithstanding its acceptance that the authorities had asked the applicant about his brother, about weapons, and to provide information about other people. Such questioning, the IAA considered, was consistent with country reports regarding the general use of informers from the Tamil community at the time (at [22]).
I accept the Minister’s submission that there was no inconsistency between the IAA’s acceptance that the applicant was questioned as part of regular monitoring of the Tamil community and its rejection of the proposition that the authorities took an adverse interest in the applicant (and therefore subjected him to the further reporting and questioning claimed) because of either his brother’s membership of the LTTE or his own suspected involvement. In relation to the latter finding, I am unable to accept that there was “not a skerrick of reasoning” that supported it. The IAA’s reasoning was that country information suggested that the applicant would not have been released without charge after his questioning in May 2012 if he were of adverse interest and that, as he was released, the authorities did not appear to have a level of interest in him that was consistent with what he had claimed.
Whilst another decision maker may have reasoned differently, I have not been persuaded that this reasoning was relevantly closed to the IAA.
Particular (d): finding that the applicant was not of adverse interest to the authorities
The “second illogicality” relied upon by the applicant concerned the IAA’s conclusion that he was not “of adverse interest to the authorities after being questioned” (at [23]). This was on the basis that the applicant was “released and not charged with any offences” (at [22]).
The applicant contended in written submissions that there were two difficulties with the IAA’s reasoning in this regard, as follows:
28.The first difficulty with this conclusion is that the IAA ignored (or implicitly rejected on an irrational basis) the claim that the applicant was required to report to the CID monthly and was subject to further questioning. That error has been articulated in particulars (a)-(c) of the ground.
29.But the second difficulty is that there was no logical basis in the evidence — including evidence which the IAA unequivocally accepted — that the applicant was not of adverse interest to the authorities. The IAA accepted that the applicant was questioned by the CID in May 2012, as the applicant claimed (at [22], CB 218). The IAA accepted that the applicant was mistreated by the CID when he was questioned (at [22], CB 218). The IAA accepted that the applicant’s father was also questioned by the CID (at [22], CB 218). And there was cogent evidence before the IAA from the applicant that he was of adverse interest to the authorities, having been required to report monthly and being questioned. The conclusion that he was not of interest to the authorities was not, therefore, one which had a logical connection to any evidence before the IAA.
To the extent that this aspect of the ground relied upon the arguments advanced under particulars (a) to (c), for the reasons given above those arguments have not been accepted.
As to the “second difficulty”, I accept the Minister’s submission that it has not been demonstrated that there was no logical basis in the evidence for the IAA’s finding that the applicant was not of adverse interest to the authorities.
The matters relied upon by the applicant as indicating this interest (that were not rejected by the IAA) were that he and his father were questioned by the CID in May 2012 and that he was mistreated during questioning.
However, based upon the country information before it, the IAA did not consider that the limited questioning and mistreatment the IAA accepted that the applicant had experienced demonstrated that the authorities had an adverse interest in the applicant based upon actual or suspected LTTE connections. This was in circumstances where the IAA found that:
(a)country information indicated a strong presence in the north at the time, with widespread reports of the impunity with which the authorities acted in mistreating the civilian population (at [22]);
(b)the applicant was not identified as being of concern whilst at an IDP camp (whereas if he had been of concern he would have been taken into rehabilitation) (at [16]);
(c)the applicant would have been required to pass through various checkpoints whilst living and working in various places, and would have been expected to have been detected at those checkpoints if he were of adverse interest to the authorities (at [21]);
(d)there was no evidence that the authorities took any interest in the applicant in the three years following the end of the war in 2009, when his local area first came under army control (at [23]);
(e)the applicant was released without charge after being questioned in May 2012, despite the breadth of the powers available to the authorities under the Prevention of Terrorism Act (at [22]);
(f)the applicant was permitted to travel to India on a tourist visa, which was not consistent with his name being on an alert list (at [24]); and
(g)although the applicant had some familial links to the LTTE, all persons in the northern and eastern provinces of Sri Lanka had some level of contact or association with the LTTE, and the applicant’s father had not come to harm despite having familial links that were at least as significant (at [32]).
Such reasoning was intelligible and logically probative of the conclusion that the IAA reached. It has not been demonstrated that the IAA’s interpretation of the country information was closed to the IAA. Nor has it been demonstrated that the IAA’s application of that information to the applicant’s personal circumstances (as found by the IAA) was logically unavailable to the IAA.
It follows that illogicality has not been demonstrated in relation to particular (d).
Particulars (e) and (f): finding that the applicant was not imputed with an LTTE profile
The “third illogicality” relied upon by the applicant concerned the IAA’s finding that the applicant was not imputed with an LTTE profile. This was in circumstances where the IAA accepted that:
(a)the applicant had been questioned by the CID in May 2012 about his brother (a member of the LTTE intelligence wing) and was mistreated by the CID (at [22]);
(b)the applicant had an information gathering role within the LTTE and carried an LTTE card bearing his photograph and a nom de guerre (at [12]-[13]); and
(c)the applicant was involved in recruiting new members of the LTTE, received weapons training and performed other tasks (at [14]-[15]).
The applicant submitted that the IAA offered no reasoning for its conclusion that the applicant was “not imputed with an LTTE profile”, notwithstanding this “avalanche of findings”. The applicant contended that this was a matter in respect of which there was no logical connection between the evidence and the conclusion drawn, and a clear inconsistency amounting to illogicality with the conclusions the IAA did draw.
There is some overlap between this aspect of the ground and the matters considered above.
For the reasons given above, I am not persuaded that it was closed to the IAA to have rejected that the applicant was of adverse interest to the authorities on the basis of any imputed LTTE profile. This is notwithstanding the IAA’s acceptance that the applicant was questioned about his brother and mistreated by the CID in May 2012.
In relation to the applicant’s actual LTTE involvement, it was open to the IAA to have reasoned that this did not give rise to a risk of harm on the part of the applicant unless it was known to the authorities. I accept the Minister’s submission that the IAA’s reasons for not accepting that this was known were logically available to the IAA. In this regard, the IAA reasoned that:
(a)the applicant did not appear to have a known LTTE profile whilst in an IDP camp. This was in circumstances where country information indicated that those suspected of having LTTE links were separated and placed in rehabilitation, or prosecuted for security offences, which the applicant did not claim had happened to him (at [16]);
(b)it was not plausible that the applicant was well known in the community for his involvement with the LTTE, given that this did not appear to have been identified at the time of his admission or residence in an IDP camp (at [16]);
(c)the applicant’s claim to have escaped from an IDP camp in 2012 did not accord with country information nor with other information that he had provided (at [17]-[20]);
(d)the release of the applicant without charge after questioning in May 2012 indicated a lack of adverse interest in him (at [23]);
(e)there was no other indication that the applicant’s LTTE card came to the attention of the authorities at the end of the war when his local area came under army control, or in the 3 years subsequently (at [23]); and
(f)all persons in the northern and eastern provinces of Sri Lanka had some level of contact or association with the LTTE when living in areas under LTTE control. The applicant’s father had not come to harm despite having familial links that were at least as significant as those of the applicant (at [32]).
Such reasoning was an intelligible basis for finding that the applicant lacked a specific or relevant LTTE profile. It has not been demonstrated that it was logically unavailable to the IAA.
Illogicality has therefore not been demonstrated in relation to particulars (e) and (f).
Particular (g): ability to depart Sri Lanka
The “fourth illogicality” relied upon by the applicant was the IAA’s consideration that his ability to depart Sri Lanka legally in December 2012 belied his claim to have been on a watch list. This, it was submitted, was in circumstances where:
(a)First, the applicant did not claim that his name had been on a watch list continuously from 2012 to 2016 (when he made the claim). Rather, he stated his concern was based on the fact that the CID had after his departure gone to his family’s house and made inquiries about his whereabouts. The applicant submitted that it was not apparent why the IAA concluded there was some connection between his (apparently) legal departure in 2012 and the “watch list” fear.
(b)Second, there was no logical connection between the applicant’s “legal” departure in December 2012 and his name not being on a watch list at a time later than that. The applicant submitted that there was no suggestion before the IAA that this was some sort of “airport” based watch list. Rather, the applicant’s fear was that he was on the CID’s watch list and that once he had returned to Sri Lanka he would be found by them.
(c)Third, the applicant did not claim to have left Sri Lanka legally in December 2012. The evidence before the IAA was that the applicant did not know if he had a genuine passport, and that he believed that a bribe had been paid to enable his departure from Sri Lanka (CB 49). The applicant submitted that the IAA ignored this evidence entirely, which was unreasonable.
The applicant’s claims regarding the “watch list” or “wanted list” do not appear to have been made with precision. In his statement (CB 49-50), he claimed that the CID had come to his family’s house in 2016 and that he was “sure that [his] name will already be on their watch list”. However, this was informed by the applicant’s other claims, including the adverse attention he claimed that he had attracted before leaving Sri Lanka. Later in his statement, the applicant referred to being on the CID’s “wanted list”.
The applicant’s representatives in submissions at CB 96 referred to a chance of the applicant being placed on a CID “list of persons to arrest, detain and interrogate over involvement with the LTTE, and possession of anti-government ideologies.”. At CB 112, the representative’s submissions referred to reports from the UK stating:
…
A person whose name appears on a computerised -stop list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a stop list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
The authorities maintain a computerised intelligence-led watch list. A person whose name appears on a watch list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return.62
The IAA summarised the applicant’s claims, including his claim to be on a “watch list” and a “wanted list”, at [7] of its decision. At [24], the IAA reasoned:
24.I accept that the applicant travelled to India in 2012 and from there travelled to Australia. I have had regard to the applicant's claim that a friend engaged an agent who got a passport for him and he does not know if the passport was genuine. There is no indication that the passport was in a name other than the applicant's own name, noting his statement that he gave his friend all his documents. Furthermore, I note the UK Home Office report outlining airport procedures for people exiting Sri Lanka and that checks are made to detect passports that have been forged or tampered with. I also note that people placed on an alert or wanted list will be denied embarkation10. I place significant weight on the applicant's ability to depart Sri Lanka legally in… 2012 and I find this belies his claim that his name has been placed on a watch list.
At [33], the IAA considered:
33.I do not accept that his name is listed on a wanted list and he will be detained or harmed accordingly, nor that he cannot work or start a business on this basis.
The IAA, therefore, did not accept that the applicant was on any kind of “watch list” or “wanted list”.
In relation to the first issue raised by the applicant, I accept that he did not claim that his name had been on a watch list continuously from 2012 to 2016. However, his claim to have been of adverse interest to the authorities in 2016 and beyond was not unrelated to the adverse interest the applicant claimed to have generated prior to his departure in 2012. It was open to the IAA to find that the applicant’s ability to depart Sri Lanka was among the circumstances it considered told against the applicant having an adverse profile at that point. Whether or not the applicant was of adverse interest in the past (and the level of such interest) was capable of informing the question of whether or not he was of adverse interest (and therefore on some list) subsequently. This was particularly in circumstances where the IAA ultimately rejected that the authorities had inquired about the applicant in 2016 (at [23]).
In relation to the applicant’s second complaint, I accept the Minister’s submission that it cannot be said that there was no logical connection between the applicant’s “legal” departure in December 2012 and his name not being on a watch or wanted list at a time later than that. As the Minister submitted, the fact that the applicant was permitted to depart Sri Lanka legally supported a finding, at the very least, that he was not formally wanted by the authorities in 2012. The extent of the interest in the applicant in 2012 was not irrelevant to the question of whether he was wanted by the authorities thereafter.
In relation to the third point raised by the applicant, I am not persuaded that an inference should be drawn that the IAA overlooked the applicant’s evidence that he did not know if he had departed Sri Lanka on a genuine passport, or that he believed that a bribe had been paid to enable his departure. The IAA expressly referred at [24] to the applicant’s evidence regarding the involvement of his friend and lack of knowledge regarding whether or not the passport was genuine. Although the IAA did not expressly refer to the applicant’s belief that a bribe had been paid, this is potentially explicable by the limited nature of this evidence. The applicant did not suggest that he had any direct knowledge of whether or not a bribe had been paid. As was summarised by the IAA, on the applicant’s account his friend engaged an agent to obtain the passport, the applicant had provided his friend with documents, and the applicant did not know if the passport was genuine. In these circumstances, it was open to the IAA to infer that the applicant had departed Sri Lanka legally, having regard to country information and the applicant’s statement that he had given his friend documents in order to obtain the passport.
I am therefore not persuaded that illogicality has been demonstrated under particular (g).
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 6 September 2024
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