EWZ17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 784

•

28 August 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

EWZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 784

File number: MLG 2388 of 2017
Judgment of: JUDGE RILEY
Date of judgment: 28 August 2024
Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider certain matters – whether the Authority misapplied the law – whether the Authority’s decision was legally unreasonable.
Legislation: Migration Act 1958 (Cth) s.473DC
Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; [2013] HCA 18

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184

Division: Division 2 General Federal Law
Number of paragraphs: 82
Date of hearing: 27 May 2024
Place: Melbourne
Counsel for the Applicant: Anthony Krohn
Solicitor for the Applicant: Ravi James Lawyers
Counsel for the First Respondent: Laura Mills
Counsel for the Second Respondent: No appearance
Solicitor for the First and Second Respondents: Mills Oakley

ORDERS

MLG 2388 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EWZ17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

28 AUGUST 2024

THE COURT ORDERS THAT:

1.The application filed on 8 November 2017 and amended on 6 May 2024 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding.

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 RILEY:

INTRODUCTION

  1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a temporary protection visa.

    BACKGROUND

  2. In his written submissions filed on 6 May 2024, the applicant provided the following background to this matter:

    3.The Applicant is a Tamil national of Sri Lanka, not married and with no children, a Catholic, with secondary education. He also has some serious health problems, including rheumatic heart problems which [have] been treated by surgery and by possibly lifelong anticoagulants. In late August 2012, he fled by boat from Sri Lanka and has been in Australia, initially in immigration detention, since September 2012.

    4.The Applicant feared harm primarily because of imputed political opinion as supporting or connected with the Liberation Tigers of Tamil Eelam (“LTTE”).

    5.He said that apart from the abduction and disappearance of an uncle in 1991 apparently because of alleged involvement with the LTTE, and the death of a cousin in fighting for the LTTE in 1997 (CB 55, Q. 90; 130-131), he himself had suffered harm and feared it because in May 2009, near the end of the civil war in Sri Lanka, his older brother had been murdered by the Sri Lankan authorities. (CB 55, Q. 89; 130-131)

    6.The death certificate for his brother said that the cause of death was drowning, but the Applicant saw his brother’s body, and he had been shot, with “a gaping wound” in the back of his head. (CB 55, Q. 89; 130-131)

    7.The Applicant said that it was only at the time of his brother’s death and funeral did his family learn that his brother had been working for the LTTE, and that the Sri Lankan authorities were suspected of killing him. (CB 55, Q. 89; 130-131)

    8.The Applicant said that he lay low for about two years after this, but in 2011 he began a business, thinking it was safe. But in July 2012 he was taken by two soldiers from the street into an alley, was accused of supporting the LTTE because of his connection with his brother, was savagely beaten and stomped on, and was threatened with death. He collapsed unconscious, and was found and rescued by friends. He had various injuries, including shock, dislocated shoulder and extensive bruising. (CB 56, Q. 91; CB 131-132)

    9.Fearing for the Applicant’s life, his father made arrangements for him to leave Sri Lanka, illegally, by boat the following month, (CB 132)

    THE AUTHORITY’S REASONS FOR DECISION

  3. In paragraph 16 of his written submissions, the Minister noted that the Authority:

    (a) accepted the applicant’s claims as they relate to the war period (CB 238, [9]) and accepted the applicant’s claims regarding his uncle’s 1991 disappearance and his cousin’s 1997 death due to their respective LTTE involvement (CB 239, [10]);

    (b) considered that the extent of the applicant’s claims regarding his brother’s involvement in the LTTE is limited to a friends’ disclosure to the applicant’s father following his brother’s death and the Authority did not find this to be convincing (CB 240 [16]). The Authority considered it implausible that the applicant’s brother would live at home in an army controlled area in the final months of the war maintaining his work, study and home family life while carrying out LTTE activities in a spy, leadership or any other member or support role without the knowledge of his family (CB 240 [16]);

    (c) accepted that the applicant’s brother was found dead in a lake (CB 239 [12]) and was prepared to accept that the applicant’s brother was murdered, however it was not satisfied that the perpetrators are known and did not accept the applicant’s claims that his brother was murdered by the authorities for reasons of being an LTTE, spy, leader or member (CB 240 [18]);

    (d) found that the applicant was not being pursued by the authorities, or anyone, during the period in which the applicant claimed to be in hiding following his brother’s death from May 2009 to September 2011 (CB 240-241 [19]-[20]);

    (e) accepted that the applicant was briefly captured, beaten and seriously injured, threatened and accused of supporting the LTTE (CB 241 [22]). However the Authority was not satisfied that the perpetrators were CID officers or that this was an incident of targeting by the authorities in connection with his brother’s profile (CB 241 [23]). In doing so, the Authority had regard to country information and the reasons given by the applicant as to why he thought his captors were CID officers and that there was no follow-up activity while the applicant remained in Sri Lanka nor was the applicant arrested, charged, formally detained or questioned in any detail beyond asking if he had supported the LTTE (CB 241 [23]);

    (f) accepted that the authorities became aware that the applicant was no longer residing in his parents’ household and questioned his parents’ after he left Sri Lanka as part of routine monitoring (CB 242 [25]). However, the Authority considered it implausible that the authorities have continued to harass the family for information about his whereabouts or his return (CB 242 [25]);

    (g) considered country information in relation to Tamils in Sri Lanka and was not satisfied that the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of actual or imputed LTTE links arising from his uncle and cousin’s LTTE membership, his brother’s situation and the circumstances of his death, his Tamil race, his origins from Mannar (being in the Northern Province), his gender or age even taking into account the July 2012 incident where he was harmed and the post-departure enquiries (CB 243-245 [30]-[35]);

    (h) considered country information and advice from a doctor in Australia and was not satisfied that the applicant would be unable to obtain healthcare including his required medications or monitoring in Mannar in the Northern province of Sri Lanka (CB 245-246 [36]-[39]);

    (i) was not satisfied the applicant would face persecution as a result of his claims that his education and career prospects suffered as a result of his brother’s death and the period in which he was not attending school (CB 246-247 [40]); and

    (j) accepted that should the applicant be returned to Sri Lanka, he would be identifiable to authorities at the airport as a failed or returning asylum seeker from Australia who departed Sri Lanka illegally and that while being questioned and processed at the airport he will face a brief period of detention and that detention conditions would be such as to rise to the level of a threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm for the applicant (CB 247 [41]-[47]).

    MATERIAL RELIED UPON

  4. The applicant relied upon:

    (a)his application filed on 8 November 2017 and amended on 6 May 2024 (“the application”);

    (b)the court book filed on 25 July 2018;

    (c)his written submission filed on 6 May 2024; and

    (d)exhibit 1, being the Department of Foreign Affairs and Trade Country Information Report Sri Lanka dated 24 January 2017.

  5. The Minister relied upon:

    (a)his response filed on 1 December 2017;

    (b)the court book filed on 25 July 2018; and

    (c)his written submission filed on 20 May 2024.

    GROUND 1

    Ground 1(a)

  6. Ground 1(a) in the application is:

    The Second Respondent (“the Authority”) made a jurisdictional error in not considering relevant considerations.

    Particulars

    (a)       The Authority said:

    “There is also no corroborative evidence that the applicant’s brother was shot or that the authorities were the suspected perpetrators.”

    (Court Book (“CB”) 240; Decision, [17])

    The Authority thereby ignored the Applicant’s statement in his application for the protection visa that his brother’s body “had several gunshot wounds, including a gaping wound to the back of his head”, and that:

    “When I viewed his body at our home, it had been cleaned and dressed in readiness for the funeral and [his] head was supported on a pad of cotton wool, stained with fluid from the wound at the back of his skull.” and this was consistent with his brother having been shot in the back of the head in the style of an execution.

    (CB 55, Q. 89; CB 124)

  7. In relation to ground 1(a) the Authority said:

    7.        The applicant’s claims can be summarised as follows:

    …

    •On 15 May 2009 some workmen found the body of his brother. His body contained a gunshot wound to the head however the death certificate states the cause of death as ‘drowning in swirling waters’. The applicant was shocked and distressed by his brother’s death.

    •After the funeral his father informed him that some of his brother’s friends had said his brother was an LTTE member involved in anti-government activities. They said his brother had been appointed as a leader of the local LTTE, apparently because he was a good communicator, spoke fluent English and had advanced computer skills. The Criminal Intelligence Division (CID) was generally suspected of killing his brother due to his links to the LTTE. His brother’s LTTE links were not previously known to the applicant. His brother had been living at home with their parents where his computer skills and English fluency were useful for their family business. His brother had also told him he was studying Information Technology. When the applicant spoke with his brother they spoke mostly about sport and the applicant’s studies – they never discussed politics or the civil war.

    …

    12.I accept the applicant’s brother was found dead in a lake near St Xavier’s school and that this has undoubtedly been tragic for the applicant’s family. However overall, I consider the applicant’s claims about his brother’s LTTE involvement to be vague and unconvincing and in some aspects, implausible.

    13. The applicant claims that prior to his brother’s death in May 2009, the family had no knowledge of his brother’s LTTE involvement. He claims that his brother, who was 25 years old at the time, had been living in the family home while studying Information Technology (IT) and helping in the family business. He claims that while he himself was residing away from home for study purposes, he maintained contact with his brother but that their conversations never involved politics or the war, and that they had mostly discussed sports and studies. He claims that following his brother’s death, his brother’s friends disclosed to his father that his brother had been involved with the LTTE and that he had held a leadership position and that his father had relayed this to him and advised him to cease attending school and avoid the authorities.

    14. The applicant was questioned about these claims at length in the TPV interview during which the delegate also put to the applicant his concerns. The applicant was unable to provide any detail about the nature of his brother’s role (beyond him being a spy and a leader), length of service or movements. In response to questioning on such points, the applicant reiterated throughout the interview that his knowledge of his brother’s activities arose only through information relayed by his father who in turn had heard the information from the friends and that he did not know any further details. The delegate asked the applicant why he thought his brother, an LTTE member, would have been residing in an army controlled area during the final months of the war. The applicant responded that he and his father had not known anything about his brother’s involvement and it was only later on that they came to know he was involved in the LTTE’s spy group. The delegate put to the applicant he was having difficulty understanding how he could not have known that his brother was involved with the LTTE and in particular that their father, who lived at home with the brother, could not have known. He stated that his father was a busy businessman and that his brother was studying I.T. in Mannar and was assisting his father in the business.

    15. In his submission to the IAA the applicant stated his brother’s LTTE links would have provided army intelligence officers with a motive for killing him. He stated they also had more means than anyone else in [Place Y] and that the absence of any police investigation into the homicide suggests that local police had good reasons for not making the usual enquiries. He noted that the authorities delayed registering the death until three years later (in 2012) and that the death certificate falsely indicates the death as ‘drowning’ despite a gunshot wound to the head and that this is evidence of conspiracy. He also pointed to the accusations made by his captors in July 2012 that he had supported the LTTE and stated they had deduced this on the basis of his brother’s involvement. I have considered these submissions.

    16. Overall, the extent of the applicant’s claims regarding his brother’s involvement is limited to the friends’ disclosure to the applicant’s father following his brother’s death and I do not find this to be convincing. I have considered the applicant’s submissions to the IAA including that the nature of his brother’s work was dangerous and therefore was necessarily kept secret. I have considered the possibility that the applicant’s brother was engaged as a spy or informant for the LTTE while residing in the army controlled area. However on the evidence before me, I am not satisfied of this. Rather, on the evidence, the applicant’s brother appeared to be living a normal daily life, working and studying in an army controlled area. I consider it implausible that the applicant’s brother would live at home in an army controlled area in the final months of the war maintaining his work, study and home family life while carrying out LTTE activities in a spy, leadership or any other member or support role without the knowledge of his family.

    17. I have considered the applicant’s claims about the lack of homicide investigation, the motivations of the authorities and the issues regarding the death certificate. However apart from the friends’ statements to the applicant’s father, there is no corroborative evidence that the applicant’s brother was involved with the LTTE. There is also no corroborative evidence that the applicant’s brother was shot or that the authorities were the suspected perpetrators. I note the certificate was issued in 2012 by a Doctor who was the Medical Registrar of Birth and Death in [Place X] and that the informant was the District Magistrate for [Place Y]. There is no evidence before me that the Sri Lankan armed forces had any involvement with the issuance of (or with influencing the issuance of) this death certificate although I note the Doctor and Magistrate also form part of the government authorities. In any case I consider it implausible that the authorities or others considered it necessary to cover-up the killing of an LTTE operative (particularly a spy or leader) killed in the final stage of the war. (emphasis added)

    18. Having considered the evidence and submissions I am prepared to accept the applicant’s brother was murdered however I am not satisfied that the perpetrators are known. I do not accept the applicant’s claims that he was murdered by the authorities for reasons of being an LTTE spy, leader or member.

  8. Ground 1(a) is essentially saying that the Authority failed to treat the applicant’s own evidence about the manner of his brother’s death as corroborative evidence. However, the Authority obviously meant that there was no evidence to corroborate the applicant’s evidence. That was true. It was the applicant himself who reported to the Authority what he claimed his father and a friend had said.

  9. The applicant did provide photographs of someone, who the Authority accepted was the applicant’s brother, in a coffin. However, the photographs did not show any bullet holes in the person, or any fluid stains on the pillow. Consequently, the photographs do not corroborate those claims.

  10. At the hearing before this court, the applicant was unable to point to anything that could be regarded as corroborating evidence that the applicant’s brother was shot. It is obvious that the Authority did consider that claim and rejected it. The Authority specifically said that there was no corroborating evidence that the applicant’s brother was shot.

  11. However, the applicant then changed tack, and said that the Authority did not mention anywhere in its reasons for decision the applicant’s claim to have seen fluid staining the pillow. However, it is implicit in the Authority’s reasoning that it did not accept that the applicant’s brother was shot or that there was any fluid staining the pillow.

  12. The applicant also took issue with the Authority accepting that the applicant’s brother had been murdered without making a finding about the cause of death. The Authority implicitly found that the applicant’s brother was not shot and died by drowning, as stated in the death certificate. Obviously, people can be murdered by drowning, and people can be murdered by non-state actors. It was not necessary for the Authority to embark on an inquiry to determine who murdered the applicant’s brother.

  13. Ground 1(a) is not made out.

    Ground 1(b)

  14. Ground 1(b) in the application is:

    The Second Respondent (“the Authority”) made a jurisdictional error in not considering relevant considerations.

    Particulars

    …

    (b)       The Authority said:

    “I am prepared to accept he was briefly captured, beaten and seriously injured, threatened and accused of supporting the LTTE. I am not however, satisfied on the evidence that the perpetrators were CID officers or that this was an incident of targeting by the authorities in connection with his brother’s profile…. I find this was an opportunistic and isolated criminal incident.”

    (CB 241-242, [23])

    But the Applicant had said:

    While we were standing at the side of the lane, they claimed that I was a supporter of the Tamil Tigers. I denied this, but they claimed that I must have supported that group because of my brother’s involvement with it.

    (CB 124)

  1. The applicant’s full claim on the July 2012 issue was set out in his written statement at CB124-125. The relevant paragraph is as follows:

    I had played volleyball from the age of fourteen and, on 2 July, 2012, was playing for a club known as ‘St. Lawrences’ during a district competition at Mannar. I went for lunch to a cafe near the volleyball court and was walking back when I was stopped by two soldiers on a motor-bike. The one sitting behind the driver knew me as the brother of Siran. They made me sit between them and drove me to a quieter part of Mannar, where they turned from the main road into a small lane. While we were standing at the side of the lane, they claimed that I was a supporter of the Tamil Tigers. I denied this, but they claimed that I must have supported that group because of my brother’s involvement with it. They then beat me with batons around the shoulders, lower back, buttocks and abdomen. While beating me they said “We will investigate your dealings and, if we get any more information about you, next time we catch you, you’re dead!” I became giddy and fell onto the roadway. While I was lying face down, the soldiers stopped beating me and began stamping their feet on my back. Everything became hazy at that time and I probably fainted, as I can’t remember the soldiers driving away. My next memory is hearing the sound of vehicles (probably from the main road). I tried to get up, but was prevented from doing so by the pain in my right shoulder. Eventually, I was found by some friends who had come looking for me. They revived me by splashing water onto my face and then took me to a hospital or medical clinic in a tuk-tuk. I was found to have a dislocated right shoulder with tendon and soft tissue injuries.

  2. The Authority summarised this claim in paragraph 7 of its reasons for decision as follows:

    On 2 July 2012 he was [walking] in [Place Y] when two soldiers on a motorcycle stopped him, put him between them on the bike and drove up a small lane in a quieter part of the city. They accused him of being a supporter of the LTTE due to his brother’s association with the group. Despite his denials they beat him. They threatened that they would investigate his dealings and if they received any more information about him, the next time they caught him they would kill him. Dizzy from the pain, he fell over and they continued to beat him until he fell unconscious. When he regained consciousness he was unable to get up due to his shoulder being injured. Some friends came looking and found him. They took him in a tuk tuk to a medical centre.  

  3. That is an adequate summary of the issue. The Authority expressly noted in its summary the applicant’s claim that the two men had accused him of being an LTTE supporter because of his brother’s association with that group. The Authority dealt with this issue as follows:

    21.The applicant claims he eventually emerged from hiding in September 2011 and started a grocery delivery business. He claims he was abducted at gunpoint while walking home in July 2012. He claims he was taken by two men he believed to be CID members to an isolated area where he was questioned about whether he, like his brother, had supported the LTTE. He claims they beat him unconscious, threatened to kill him next time they caught him. He claims he was found by his friends who then took him to a medical clinic and he has provided a letter from his doctor attesting to treatment for a shoulder dislocation.

    22.I note in his Arrival interview the applicant stated he was questioned and beaten on the road, held for about half an hour and then let go but in the TPV process he claimed that rather than being let go, they beat him unconscious, after which he was found by friends and taken to a medical clinic. Despite this discrepancy I am prepared to accept he was briefly captured, beaten and seriously injured, threatened and accused of supporting the LTTE.

    23. I am not however, satisfied on the evidence that the perpetrators were CID officers or that this was an incident of targeting by the authorities in connection with his brother’s profile. The applicant stated the reasons he thought his captors were CID officers was because they came on a motorbike with a pistol and baton and because of the way they were talking. The delegate asked the applicant why, if the CID were interested in him, they would stop him on the street in such manner rather than come to his home where he was registered or to his workplace to find him and the applicant responded that it was normal for them to take people from the street. He stated they want you to know they can take you from anywhere. I have considered the applicant’s responses and I note there is reporting indicating that authorities were known to harass and intimidate the Tamil population in the North in the aftermath of the war. However country information indicates that in the aftermath of the war Sri Lankan authorities maintained efforts in seeking out, arresting, detaining and remanding in rehabilitation centres both high and low-profile LTTE members as well as non-members they suspected had assisted the LTTE, even if their involvement was purely peripheral. Many civilians were also questioned or monitored towards the end of the conflict. However, on the evidence, neither the applicant nor his father or any other members of his family were ever formally arrested, detained, sent for rehabilitation nor monitored or subject to reporting. In addition to my concerns outlined above regarding the applicant’s brother’s profile, I am not convinced by the applicant’s explanations about why he believed these men - who on the evidence abducted him from the road and did not identify themselves or seek to commence any formal proceedings such as arresting, charging or formally detaining the applicant, nor questioning him in any detail beyond asking if he had supported the LTTE - to be CID officers. Even if I were to accept that the perpetrators were rogue CID officers, the incident occurred more than three years after his brother’s death and around nine months after the applicant had moved back with his family during which time I have found the applicant was not sought by the authorities. The incident occurred on 2 July 2012 and the applicant remained in Sri Lanka, in his home until he departed the following month. On the evidence there was no follow-up activity during that time. Had the applicant been of interest to the CID or any other authorities, I find they would have taken other measures to intercept the applicant and that he would have been subject to additional authoritative processes. I have sympathy for the applicant experiencing this frightening incident and for the physical harm and mental trauma that it caused him, however I do not accept the perpetrators were members of the authorities or that the incident was prompted by any suspicion of the applicant on the part of the authorities. I find this was an opportunistic and isolated criminal incident.

    (footnote omitted)

  4. In its analysis, the Authority noted that the two abductors had accused the applicant of being an LTTE supporter, but did not specifically say that was because of his brother’s activities. However, the Authority had noted that claim earlier in its reasons. This is an issue to which WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184 applies. In that case, the Full Court of the Federal Court said at [47]:

    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

  5. The Authority, having identified the claim at paragraph 7 of its reasons for decision, was not required to repeat it in paragraphs 21 to 23. In those paragraphs, the Authority made a finding of greater generality, namely, that the abductors were not members of the CID. That was sufficient.  Moreover, the Authority found separately that the applicant’s brother was not murdered by the authorities because he was an LTTE spy, leader or member.

  6. In his written submissions, the applicant made a different point in relation to ground 1(b). He said that the Authority failed to engage with the applicant’s submission that:

    It appears that the two men who assaulted me on 2 July, 2012 and have since beaten my father and made repeated threats against my life still enjoy positions of considerable power on the island. For reasons of which I am unaware, but presumably have some connection with Siran, those men appear to have a long-standing attitude of hostility and vindictiveness towards me. (CB 211)

  7. Again, the point is covered by WAEE. The applicant’s claim, for reasons of consistency, can only mean that the people with considerable power were CID members. Having found that the abductors were not CID members, the applicant’s claims about the abductors having considerable power must also fall away.

  8. Without wishing to engage in merits review, the applicant’s claim that the two people who beat him are the same as the two people who beat his father also detracts from the credibility of the applicant’s claims on this point. The applicant’s father did not witness the two men beating the applicant, and the applicant did not witness the two men beating his father, so it is difficult to see how the applicant could have known they were the same people.

  9. In any event, the Authority expressly did not accept in paragraph 25 of its reasons for decision that the authorities had continued to harass the applicant’s family. The Authority described these claims as an “embellishment”. In other words, the Authority did not accept that the two men beat up the applicant’s father. It follows that there was no basis to the applicant’s claim of “long-standing hostility and vindictiveness”.

  10. The Authority expressly concluded at paragraph 23 of its reasons for decision that the attack on 2 July 2012 was “an opportunistic and isolated incident”. This finding necessarily means that the Authority did not accept that the two people responsible for the attack had “a long-standing attitude of hostility and vindictiveness” towards the applicant.

  11. Ground 1(b) is not made out.

    Ground 1(c)

  12. Ground 1(c) in the application is:

    The Second Respondent (“the Authority”) made a jurisdictional error in not considering relevant considerations.

    Particulars

    …

    (c) The Authority did not consider with the engagement required by law all the material and information before it relating to the prevalence and culture of torture and abuse in Sri Lanka, including the abuse of persons in detention, including the whole of the report on Sri Lanka by the Australian Department of Foreign Affairs and Trade dated 24 January 2017.

  13. The applicant set out in his written submissions the following extracts from the Department of Foreign Affairs and Trade Country Information Report Sri Lanka dated 24 January 2017 (“the DFAT report”):

    TORTURE

    4.12      A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).

    4.13      These reports include:

    -International Truth and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015

    - ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009- 2015

    - Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009

    - Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees.

    The 2016 ITJP report cited 20 cases of torture in 2015. FFT’s report cited eight torture cases in 2015. DFAT notes that verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum. However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.

    …

    4.15     DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.

    4.16     In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.

    4.17     …Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights…..

    4.18     DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.

    4.19     DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.

    4.20     Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.

    Torture and mistreatment of returnees

    4.21     DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.

    4.22     Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased. 

    (emphasis in the applicant’s submissions)

  14. The Authority referred to the DFAT report in footnotes 15 and 17 of its reasons for decision, which were to paragraphs 42 and 44 of its reasons for decision. Those paragraphs are as follows:

    42.I accept that the applicant will be subject to police investigations to confirm his identity and to address whether he would be trying to conceal his identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. I accept this may involve interviewing him, contacting the police in his home in Mannar, contacting his claimed neighbours and family and checking criminal and court records. I also accept he will be checked against the authorities’ sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases.15

    …

    44.Between 2008 and 2015, over 1,500 asylum seekers were returned from Australia to Sri Lanka as well as thousands from the US, Canada, the UK and other European countries, the majority of which have been Tamil. Of the thousands of returnees who have returned since 2009 there have been allegations of torture or mistreatment.16 However DFAT assesses the risk of harm for the majority of returnees is low and continues to reduce17 and I am not satisfied that these reports or allegations are informative of the circumstance that would be faced by the applicant upon return.

    FN 15: DFAT, “DFAT Country Information Report - Sri Lanka”, 18 December 2015, CISEC96CF14143; DFAT, “DFAT Country Information Report – Sri Lanka”, 24 January 2017, CISEDB50AD105; UK Home Office, “Country Information and Guidance, Sri Lanka: Tamil separatism (version 2.0)”, 19 May 2016, OGD7C848D17

    FN 16:International Truth & Justice Project Sri Lanka (ITJP), “Silenced: survivors of torture and sexual violence in 2015”, 7January 2016, CIS38A801275; DFAT, “DFAT Country Report – Sri Lanka”, 16 February 2015, CISC96CF1164; Sri Lanka Mirror, “10 Tamils arriving in Lanka arrested”, 4 March 2015, CXBD6A0DE6065; Tamil net, “16 Batticaloa Tamils arrested within last 100 days at Colombo airport”, 3 May 2015, CXBD6A0DE6027; Tamil net, “SL military continues to arrest Tamils from East returning from Middle-East”, 31 May 2015, CXBD6A0DE7540; Sri Lankan Mirror, “Another Tamil returnee arrested”, 1 July 2015, CXBD6A0DE16698; UK Home Office, “Sri Lanka - Bulletin: Treatment of Returns”, 1 December 2012, CIS28615

    FN 17:DFAT, “DFAT Country Report – Sri Lanka”, 16 February 2015, CISC96CF1164; DFAT, “DFAT Country Information Report - Sri Lanka”, 18 December 2015, CISEC96CF14143; DFAT, “DFAT Country Information Report – Sri Lanka”, 24 January 2017, CISEDB50AD105

  15. It is clear that the Authority did consider, with the engagement required by law, the material regarding torture in Sri Lanka, and, in particular, the DFAT report.

  16. Ground 1(c) is not made out.

    Ground 1(d)

  17. Ground 1(d) in the application is:

    The Second Respondent (“the Authority”) made a jurisdictional error in not considering relevant considerations.

    Particulars

    …

    (d) Further or in the alternative to Particular (c), the Authority did not consider with the engagement required by law the risk of persecution or significant harm to the Applicant during any period he may spend detained in prison.

    (CB 248, [47]; CB 252, [62])

  18. The Authority considered the period the applicant may spend in detention in paragraph 47 of its reasons for decision, which is as follows:

    I find that while being questioned and processed at the airport the applicant will face a brief period of detention. The information before me indicates there is a possibility he may be detained more than a day while awaiting an opportunity to appear before a magistrate. While I am satisfied that this would be dependent on the timing of his arrival and that such a period of detention is likely to be remote, I accept that if the applicant’s detention did extend to more than a day that it may occur in a Sri Lankan prison. Information that was before the delegate indicates that conditions in Sri Lankan prisons are poor,21 however I am satisfied on the information that this is due to economic and resourcing conditions and old infrastructure, not a result of any systematic or intentional conduct by the Sri Lankan authorities. The country information before me indicates that any such detention would likely be brief, only continuing until the applicant was given an opportunity to appear before a magistrate. I also consider the information about the low risk to returnees is relevant to this period. I have considered the applicant’s health conditions and requirements. I am not satisfied on the evidence that the applicant would not have access to his medication during this brief period, or that his physical or mental health conditions are such that he will face an elevated risk of harm during this brief period. Having regard to all these circumstances, I am not satisfied that the detention conditions will be such as to rise to the level of a threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm for the applicant. (emphasis added)

  1. The Authority clearly considered whether the applicant might face serious harm in detention and decided that he would not. Similarly, the Authority clearly considered whether the applicant might face significant harm in detention in paragraph 62 of its reasons for decision which is as follows:

    As to his treatment under the criminal justice system as a person who departed illegally and any questioning and detention he may experience in relation to this, or his return as a failed asylum seeker, as set out above, I find that the applicant will be issued a fine and released, or if he pleads not guilty, he will be released pending his court date. While I have found above that the applicant will not receive a custodial sentence, I have considered the conditions the applicant may face if he is held in a nearby prison while waiting to come before the magistrate, or waiting for his family to act as guarantor and collect him. Information that was before the delegate indicates that in general, prison conditions in Sri Lanka do not meet international standards due to a lack of resources, over-crowding and poor sanitation. Even taking into account the applicant’s health conditions I am not satisfied that the applicant, if subject to a short period of detention awaiting collection or prosecution under the I&E Act would be subject to the death penalty or otherwise arbitrarily deprived of their life nor tortured. The evidence also does not indicate he would be denied his medication or any necessary medical treatment or that there is an intention to inflict pain or suffering or severe pain or suffering or cause extreme humiliation. In light of this, I am not satisfied that the applicant would be subject to acts or omissions which would constitute significant harm, as defined under s.36(2A) and s.5 of the Act during his time in detention or prison while awaiting his Magistrates Court hearing or collection by a family member.

  2. The Authority clearly considered, with the engagement required by law, the risk of serious or significant harm the applicant might experience in detention.

  3. Ground 1(d) is not made out.

    GROUND 2

    Ground 2(a)

  4. Ground 2(a) in the application is:

    The Authority made a jurisdictional error in that it erred in interpreting or applying the law.

    Particulars

    (a)The Authority erred in interpreting or applying sections 36(2)(a), 36(2)(aa) and 65 of the Migration Act 1958 (“the Act”) in determining pursuant to section 65 of the Act that it was not satisfied that the Applicant had a real chance of suffering relevant harm such as to be owed protection pursuant to section 36(2)(a) or 36(2)(aa) of the Act, when it said:

    (i) “I consider it implausible that the applicant’s brother would live at home in an army controlled area in the final months of the war maintaining his work, study and home family life while carrying out LTTE activities in a spy, leadership or any other member or support role without the knowledge of his family.”

    (CB 240; Decision, [16])

    (ii) I am prepared to accept the applicant’s brother was murdered however I am not satisfied that the perpetrators are known. I do not accept the applicant’s claims that he was murdered by the authorities for reasons of being an LTTE spy, leader or member.

    (CB 240; Decision, [18])

  5. The applicant said in relation to these grounds in his written submissions:

    30.In the first of these instances, while the Authority used the word “implausible” (meaning “unlikely”), on a fair construction of its reasons, it really excluded the possibility of this claim being true and the attendant elevated risk of harm to the Applicant if it were true. It had no evidentiary basis to do so, and was therefore not finding facts in a manner consistent with Parliament’s provision of the “real chance” and “real risk” tests in sections 5H, 5J, 36(2)(a) and 36(2)(aa). If there were a small chance that the claim was true then the Authority may well have been obliged to find a real chance of the Applicant suffering relevant harm.

    31. In the second instance, the Authority, having accepted the Applicant’s brother was murdered, and having no reason to reject the claim that he was shot in the back of the head, had no evidence to reject the overwhelmingly likely possibility that the murderers in an execution style killing were political or ethnic opponents – in either case, the Sri Lankan authorities. It therefore follows that the Authority was not finding facts in a manner consistent with the test it was required to apply.

  6. In the present context, I do not accept that “implausible” means “unlikely”. It means “unbelievable”. It is the Authority’s task to assess whether an applicant’s claims are credible or not. While there may be occasions when the court can interfere with that assessment, the applicant has not identified any proper basis for doing so in the present case.

  7. The applicant’s oral submissions were to the effect that, having only decided that the applicant’s brother’s alleged role with the LTTE was “unlikely”, the Authority had to go further and decide how likely it was that the applicant’s brother was associated with the LTTE, and then assess the impact of that on the applicant’s own circumstances. However, once it is accepted that “implausible”, in context, means “unbelievable”, this argument falls away.

  8. In addition, the Authority did not only find that it was implausible that the applicant’s brother was a spy or leader in the LTTE. The Authority found that it was not satisfied that he was a spy or leader in the LTTE in paragraph 16 of its reasons for decision. That is an explicit finding that the applicant has not undermined.

  9. Moreover, there was an evidentiary basis for the Authority’s findings in relation to the applicant’s brother’s LTTE association and his death. The Minister summarised that evidence in paragraph 43 of his written submissions, which is as follows:

    The above findings involve rejection of the applicant’s claims. They are, of course, partly based on a lack of evidence that supports the applicant’s claims. The evidentiary basis of the above findings is further addressed by the Authority’s decision as follows:

    (a) the applicant’s evidence, referred to at [13] of the decision, that the applicant claims that prior to his brother’s death in May 2009 the family had no knowledge of his brother’s LTTE involvement;

    (b) the applicant’s evidence that his brother was living at the family home while studying and helping in the family business (at [13]);

    (c) the Authority’s finding that the applicant was unable to provide any detail about the nature of his brother’s role (beyond him being a spy and a leader), length of service or movements and the applicant’s knowledge arose only through information relayed by his father who in turn had heard the information from the friends (at [14]); and

    (d) the Authority’s finding that the applicant’s claims, based on disclosure by the applicant’s brother’s friend to the applicant’s father after his brother’s death, were not convincing (at [16]);

    (e) there was no corroborative evidence that the applicant’s brother was involved with the LTTE or that the authorities were the suspected perpetrators of the brother’s death (at [17]).

  10. I adopt that summary. In addition, there was the evidence of the applicant’s brother’s death certificate, which showed that the cause of death was drowning, not a bullet wound. The Authority specifically found at paragraph 17 of its reasons for decision that there was no corroborative evidence that the applicant’s brother was shot. Read as a whole, the Authority clearly rejected the claim that the applicant’s brother was shot or killed in the style of an execution.

  11. Ground 1(b) is not made out.

    Ground 2(b)

  12. Ground 2(b) in the application is:

    The Authority made a jurisdictional error in that it erred in interpreting or applying the law.

    Particulars

    (b) The Authority erred in not seeking new information under section 473DC of the Act about the Applicant’s claim that his father had told him that members of the CID or other authorities of Sri Lanka had come seeking the Applicant a number of times after the Applicant left Sri Lanka.

  13. The applicant said in his written submissions in relation to this ground that:

    32.The Authority erred in not seeking new information under section 473DC of the Act about the Applicant’s claim that his father had told him that members of the CID or other authorities of Sri Lanka had come seeking the Applicant a number of times after the Applicant left Sri Lanka.

    33.      The Authority said:

    I am prepared to accept that the authorities became aware the applicant was no longer residing in the household and questioned the applicant’s parents after he left Sri Lanka as part of routine monitoring. However I do not accept the applicant was suspected of being an LTTE member or supporter in the years or months leading up to his departure and the applicant’s own evidence is that the authorities became aware he departed to Australia. Given these factors I consider it implausible that the authorities have continued to harass the family for information about his whereabouts or his return, or have indicated they are searching for him. I find this to be an embellishment and I do not accept there have been any recent visits to the family. (CB 242, [25])

    34. While the Authority has no general duty to obtain new information under section 473DC, in some situations it must do so, acting reasonably.15

    35. In this matter, having accepted some visits by the CID, and not having a claim (which it did not determine) that the particular CID officers had great power in the region of the Applicant’s home, the Authority, acting reasonably, was obliged to seek new information to clarify the matter.

    36. The error was material, as it went to the assessment of the seriousness of the Applicant’s profile.

    FN 15:E.g. Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (14 December 2017)

  14. The applicant seems to be arguing that it was unreasonable for the Authority to have not sought new information under s.473DC of the Migration Act 1958 because:

    (a)the Authority accepted that the applicant’s family had been visited by the CID; and

    (b)the Authority had failed to determine the claim that the CID officers who assaulted the applicant on 2 July 2012 had great power in the region of the applicant’s home.

  15. However, as discussed above, the Authority expressly did not accept that the applicant was assaulted by CID officers on 2 July 2012 and implicitly did not accept that the people who assaulted him had great power in the area. The Authority considered at [25] of its reasons that the CID visit to the applicant’s home was part of routine monitoring.

  16. It follows that the bases on which the applicant submitted it was unreasonable for the Authority to have not sought new information from the applicant do not exist. Moreover, the applicant has not pointed to any further information he could have given if the Authority had sought it.

  17. Ground 2(b) is not made out.

    GROUND 3

    Ground 3(a)(i)

  18. Ground 3(a)(i) in the application is:

    The Authority made a jurisdictional error in that it was legally unreasonable.

    Particulars

    (a)       The Authority had no logically probative basis for its findings that:

    (i) “I consider it implausible that the applicant’s brother would live at home in an army controlled area in the final months of the war maintaining his work, study and home family life while carrying out LTTE activities in a spy, leadership or any other member or support role without the knowledge of his family.”

    (CB 240; Decision, [16])

  19. The applicant noted that, in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 87 ALJR 618; (2013) 297 ALR 225; [2013] HCA 18 at [68], the majority of the High Court said:

    The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

    (emphasis as per applicant’s written submissions)

  20. The applicant submitted that the finding referred to in ground 3(a)(i) was based on assumption or mere assertion rather than evidence, and was therefore not reasonably open to the Authority to make.

  21. In the cited passage, the Authority was not making a positive finding, for which it would arguably have needed evidence, but was just saying it was not persuaded of the truth of the applicant’s claim. It was open to the Authority to take that view.

  22. Moreover, for the reasons discussed above, there was evidence and a logical pathway for the Authority’s conclusion.

  23. Ground 3(a)(i) is not made out.

    Ground 3(a)(ii)

  24. Ground 3(b)(ii) in the application is:

    The Authority made a jurisdictional error in that it was legally unreasonable.

    Particulars

    …

    (ii) “I consider it implausible that the authorities or others considered it necessary to cover-up the killing of an LTTE operative (particularly a spy or leader) killed in the final stage of the war.

    (CB 240; Decision, [17])

  25. The applicant submitted that the finding referred to in ground 3(a)(ii) was based on assumption or mere assertion rather than evidence, and was therefore not reasonably open to the Authority to make.

  26. In the cited passage, the Authority was not making a positive finding, for which it would arguably have needed evidence, but was just saying it the applicant’s claim to be credible. It was open to the Authority to take that view.

  27. Moreover, for the reasons discussed above, there was evidence and a logical pathway for the Authority’s conclusion.

    Ground 3(a)(iii)

  28. Ground 3(a)(iii) in the application is:

    The Authority made a jurisdictional error in that it was legally unreasonable.

    Particulars

    …

    (iii) “Having considered the evidence and submissions I am prepared to accept the applicant’s brother was murdered however I am not satisfied that the perpetrators are known. I do not accept the applicant’s claims that he was murdered by the authorities for reasons of being an [LTTE] spy, leader or member.”

    (CB 240; Decision, [18])

  29. In relation to ground 3(a)(iii), the applicant said in paragraph 42 of his written submissions that:

    Findings (iii) and (iv) are unreasonable in that they accept major findings in favour of the Applicant (execution style murder of the brother; serious assault, accusation of LTTE support, and threat of death), but refuse to take the obvious step in the context of all the evidence of a civil war and its aftermath, that at least it was possible that the perpetrators were the CID or other agents of the authorities.

  30. This ground is misguided. The Authority accepted that the applicant’s brother was murdered but did not accept that he was murdered in an execution style attack. On the contrary, as discussed above, the Authority seems to have been of the view that the applicant’s brother was not shot, and the Authority was certainly of the view that the authorities did not kill the applicant’s brother for LTTE reasons.

  31. It is true that the Authority accepted that the applicant was assaulted, accused of supporting the LTTE, and threatened. However, the Authority elaborated on its reasons for not accepting that the perpetrators were members of the CID. Those reasons provided a logical and legally reasonable pathway for the Authority’s conclusions.

  32. Ground 3(a)(iii) is not made out.

    Ground 3(a)(iv)

  33. Ground 3(a)(iv) in the application is:

    The Authority made a jurisdictional error in that it was legally unreasonable.

    Particulars

    …

    (iv)[22. …] I am prepared to accept he was briefly captured, beaten and seriously injured, threatened and accused of supporting the LTTE.

    23. I am not however, satisfied on the evidence that the perpetrators were CID officers or that this was an incident of targeting by the authorities in connection with his brother’s profile…. I find this was an opportunistic and isolated criminal incident.”

    (CB 241-242, [23])

  34. The applicant’s submissions in relation to ground 3(a)(iv) were the same as he made in relation to ground 3(a)(iii).

  35. I accept that it would be unusual for two random criminals to accuse a person of being a member of the LTTE.  I also accept that it would be unusual for two random criminals to take a person away and beat him for no particular reason.  In that connection, there was no evidence that the two people attempted robbery or extortion, for example.   

  36. However, the Authority provided reasons for concluding that the abductors were not CID members, including that:

    (a)they did not identify themselves as CID;

    (b)they picked the applicant up from the street, rather than his home, which they knew the location of;

    (c)they did not question the applicant in detail about his supposed LTTE activities;

    (d)none of the applicant, his father or other members of his family were ever formally arrested, detained, sent for rehabilitation, monitored or subject to questioning.

  37. In these circumstances, I do not accept that the Authority’s conclusion on this point was legally unreasonable. 

  38. Ground 3(a)(iv) is not made out.

    Ground 3(a)(v)

  39. Ground 3(a)(v) in the application is:

    The Authority made a jurisdictional error in that it was legally unreasonable.

    Particulars

    …

    (v) “I consider it implausible that the authorities have continued to harass the family for information about his whereabouts or his return, or have indicated they are searching for him. I find this to be an embellishment and I do not accept there have been any recent visits to the family.

    (CB 242, [25])

  40. The applicant submitted that the finding referred to in ground 3(a)(v) was based on assumption or mere assertion rather than evidence, and was therefore not reasonably open to the Authority to make.

  41. In the cited passage, the Authority was not making a positive finding, for which it would arguably have needed evidence, but was just saying it was not persuaded of the truth of the applicant’s claim. It was open to the Authority to take that view.

  42. Moreover, for the reasons discussed above, there was evidence and a logical pathway for the Authority’s conclusion.

  43. Ground 3(a)(v) is not made out.

    Ground 3(a)(vi)

  44. Ground 3(a)(vi) in the application is:

    The Authority made a jurisdictional error in that it was legally unreasonable.

    Particulars

    …

    (vi) “I have not accepted the applicant’s brother was killed for being an LTTE member or that the authorities ever suspected the applicant of being an LTTE member, supporter or sympathiser, even taking into account the July 2012 incident and that enquiries were made about the applicant following his departure.

    (CB 245, [34])

  45. The applicant submitted that the finding referred to in ground 3(a)(vi) was based on assumption or mere assertion rather than evidence, and was therefore not reasonably open to the Authority to make.

  46. However, the Authority elaborated on its reasons for not accepting that the applicant’s brother was killed for LTTE reasons, and for not accepting that the authorities suspected the applicant of having LTTE associations. Those reasons provided a logical and legally reasonable pathway for the Authority’s conclusions.

  47. Ground 3(a)(vi) is not made out.

    Ground 3(a) as a whole

  48. Taking ground 3(a) as a whole, the various matters relied on by the applicant do not show that the Authority’s decision was legally unreasonable.

    Ground 3(b)

  49. There was no ground 3(b).

    CONCLUSION

  50. As none of the applicant’s grounds has been made out, the application will be dismissed with costs. I will hear the parties on the quantum.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated: 28 August 2024

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