Feo17 v Minister for Immigration

[2020] FCCA 648

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEO17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 648

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visa – whether the Authority erred in finding the Applicant’s passport was valid – whether the Authority erred in its reasoning process to conclude that the passport was valid – whether the Authority erred in its interpretation of the DFAT 2017 report – whether the Authority erred in not accepting the applicant’s profile would be of ongoing interest to authorities – whether the Authority’s decision is tainted by any form of legal unreasonableness, illogicality or irrationality – whether the Authority made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant: FEO17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3685 of 2017

Judgment of: Judge Humphreys

Hearing date: 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Parramatta

Delivered on: 5 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Foster

Solicitors for the Applicant: Sentil Solicitor & Barrister

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3685 of 2017

FEO17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a citizen of Sri Lanka. The applicant is an ethnically Tamil adherent of Hindi faith. The applicant first arrived in Australia on 10 June 2013, as an unauthorised maritime arrival. On 29 December 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV). In April 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the visa, on the basis that Australia did not owe protection obligations to the applicant.

2. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 20 November 2017, the Authority affirmed the delegate’s decision not to grant the applicant a Safe Haven Enterprise visa.

3. The applicant now seeks judicial review of the Authority’s decision in this Court. A preliminary matter relates to a further, further, further amended application, which was not filed in Court.

4. Counsel for the applicant, sought leave to file the further amended application. Given it had not been filed in Court, even today, leave was refused. The Court notes, however, that all that application did, was seek to clarify some of the matters that were already before the Court, in terms of arguing legal unreasonableness.

5. The Court is not satisfied that any injustice has been done as a result of the decision not to grant leave to rely on the further amended application.

The Immigration Assessment Authority’s Decision

1. At paragraphs 2 and 3 of the decision, the Authority set out the information before it. This included material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”) and a submission that was received from the applicant. It addressed findings on the primary decision that was regarded as argument, rather than the new information.

2. There were also two attached documents which were country information. The first document was already before the delegate. The second was not before the delegate and was dated 1 August 2016. The Authority was not satisfied that the country information could not have been provided to the Minister prior to the delegate’s decision, nor were there exceptional circumstances to consider that information.

3. At paragraph 4 of its decision, the Authority sets out the applicant’s claims. They may be summarised as follows:

   ·The applicant is an ethnic Tamil and adheres to the Hindu Faith.

   ·Between 2002 and 2005, the applicant provided limited support to the Liberation Tigers of Tamil Eelam (“LTTE”) and attended a number of LTTE memorial events.

   ·Between 2004 and 2008, the applicant worked in a Machinist shop in Jaffna district. During the applicant’s employment, he introduced three friends to the owner of the shop and the owner subsequently employed them.

   ·During June 2008, the applicant was twice questioned by Sri Lankan Police Criminal Investigation Division (CID) about his knowledge of his three friends. They had stopped coming to work. The CID believed them to be members of the LTTE.

   ·The applicant stated that he was unable to assist the CID with their inquiries. The applicant claims he was later threatened that he would be killed unless he provided the CID information when they visited him on the second time.

   ·Following these events, the applicant fled Sri Lanka to Malaysia, as he was afraid for his life. The applicant had lived in Malaysia between 2008 and 2013.

   ·In 2013, the applicant departed Malaysia and then came to Australia via Indonesia.

   ·The applicant states he fears, if returned to Sri Lanka, he will be subject to discrimination, torture and possibly death, at the hands of the Sri Lankan authorities because of his Tamil ethnicity, his previous connections to the LTTE, his illegal departure and his failed attempt to seek asylum in Australia.

4. At paragraph 7 of its decision, the Authority was reasonably satisfied as to the applicant’s claims to his identity. The Authority accepted the applicant was born, lived and worked in the Jaffna district of Sri Lanka from his birth until 2008.

5. Paragraph 8 and onwards of the Authority’s decision, deal with imputed membership to the LTTE and ongoing police interest, together with the applicant’s Tamil ethnicity. The Authority notes the applicant’s claim that he played a minor role in the preparation of LTTE memorial services. Other than this, the applicant claimed he had no links with the LTTE. During the same time, at paragraph 9 of its decision, the Authority notes that the applicant said he was subject to minor instances of coercion from members of the Sri Lankan Army who were stationed in his area.

6. At paragraph 10 of its decision, the Authority notes that from 2004 until 2008, the applicant claims he worked as an apprentice in a Machinists workshop, which produced and repaired automobile parts. In 2008, the applicant’s employer asked him if he knew any other persons who might wish to become apprentices at the shop. The applicant brought three friends to the workshop and introduced them to his employer. They were subsequently employed.

7. At paragraph 12 of its decision, the Authority notes that in early June 2008, the applicant’s three friends stopped attending the Machinists workshop. Approximately three days later, the applicant claimed CID officers approached him while he was alone at the workshop and questioned him regarding his three missing colleagues. The applicant said he could not provide any further information. The CID officers told the applicant that the three young men had links to the LTTE and he should find out where they were.

8. At paragraph 13 of its decision, the Authority notes that approximately one week later, CID officers came back to the shop and questioned the applicant for a second time about his three missing colleagues. When the applicant stated that he was unable to find any information that would be of assistance to the CID, he claims CID officers became very angry with him and held firearms to his head. The CID officers threatened to kill the applicant if he failed to supply them with information.

9. After these events, the applicant feared for his life and decided that he had to flee Sri Lanka. At paragraph 14 of its decision, the Authority notes that the applicant claims he quit his job and went into hiding in Colombo.  The applicant then approached an agent to assist him in obtaining a passport and a tourist visa for Malaysia. The applicant states he flew out on a commercial airline flight from Sri Lanka in Colombo to Malaysia on 26 August 2008.

10. After the applicant’s tourist visa expired in Malaysia, he approached the office of the United Nations High Commissioner for Refugees (UNHCR) and registered with them. At paragraph 15 of its decision, the Authority accepted that the applicant lived in Malaysia between 2008 and 2013, working on a farm in the vicinity of Kuala Lumpur.

11. At paragraph 18 of its decision, the Authority noted that some aspects of the applicant’s claims were problematic. The applicant stated that he became friendly with the three young men during the period of 2002 to 2005, while attending LTTE memorial activities. During an interview in 2017, the applicant described them as close friends, but he asserts that he only became aware of the LTTE links after the CID officers questioned him. The Authority found these claims unconvincing. The three men, by the applicant’s own explanation, were close friends and had worked with them on a daily basis at the workshop for six months.

12. The Authority concluded the applicant knew more about his three colleagues than he was either willing to tell the CID officers in 2008 or, indeed, Australian authorities, subsequent to his arrival in this country. The Authority accepts the applicant’s three colleagues were thought to have LTTE links by the Sri Lankan police and he was questioned on that basis.

13. At paragraph 20 of its decision, the Authority had concerns as to the passport the applicant provided to authorities in Australia. The applicant only provided a scanned page of the front page of his passport, which the Authority noted was issued by the Sri Lankan Government in April 2008. This was two months prior to the events in June 2009 the applicant described as to the reason for him leaving Sri Lanka. The applicant said this was the passport he used to legally enter Malaysia and later provided to the UNHCR as evidence of his Sri Lankan citizenship in 2009. At paragraph 21 of its decision, the Authority was not satisfied with the applicant’s claims that he thought the passport was a fake and concluded he made this claim in order to explain the discrepancy between the date the passport was issued and the narrative that he gave as to why he needed to leave Sri Lanka.

14. The Authority inferred that the applicant had decided to obtain a passport and was considering leaving Sri Lanka prior to any interactions he may have had with the CID officers.

15. Paragraphs 22 and onwards of the Authority’s decision deal with relevant country information for Sri Lanka. Based on that country information, the Authority concluded that the applicant’s claims of mistreatment in 2008, while being questioned by CID officers, were consistent with country information before it.

16. At paragraph 24 of its decision, the Authority noted that Sri Lankan authorities collect and maintain significant sophisticated intelligence on former LTTE members and supporters. This information includes ‘stop’ and ‘watch’ electronic databases that are active and available at the airport.

17. At paragraph 27 of its decision, the Authority noted that the applicant was not detained by the CID on either occasion that they spoke to him, nor was he charged, arrested or was it otherwise inferred that he was involved with the LTTE. At an interview in 2017, the applicant stated there were no outstanding Sri Lankan arrest warrants for him and that after these events, he was able to depart Sri Lanka legally on a routine commercial flight from Colombo Airport.

18. At paragraph 29 of its decision, the Authority concluded that it was not satisfied the applicant was imputed to be a member of the LTTE, when questioned by the CID in 2008. Given that 10 years had passed since the incidents described, the Authority was not satisfied that the applicant’s profile would be of any ongoing interest to Sri Lankan authorities. The Authority did not accept the applicant would be imputed with being a member of the LTTE, if he was returned to Sri Lanka. The Authority was not satisfied the applicant would face a real chance of harm arising from his ethnicity, his limited support for the LTTE, his association with persons suspected of being involved with the LTTE or previous interactions with CID, should he return to Sri Lanka.

19. Paragraphs 30 through to 34 of the Authority’s decision deal with the applicant’s claims of requiring protection for being a failed asylum seeker and illegal departee. The Authority notes that all returnees can be expected to be met at the airport by Sri Lankan authorities to establish their identity and undergo routine immigration processing. These processes can take several hours. The Authority accepted that the applicant would be subject to these procedures. It was noted by the Authority that the applicant has possession of a Sri Lankan national identity card, a Sri Lankan birth certificate and a photocopy indicating that he was the bearer of a current Sri Lankan passport. The Authority was not satisfied that the applicant would face undue difficulties in establishing an identity if returned.

20. The Authority was not satisfied that the applicant departed in August 2008 illegally and as such, there was no real chance he would be subjected to any penalties under Sri Lankan law for illegal departure. The Authority was not satisfied the applicant was of any adverse interest to Sri Lankan authorities, notwithstanding the two episodes in 2008. The Authority was satisfied the applicant did not face a real chance of harm if returned to Sri Lanka and, accordingly, did not meet the requirements under s.36(2)(a) of the Act, for refugee protection.

21. Paragraphs 36 to 39 of its decision, the Authority deals with the complementary protection assessment. For similar reasons as outlined above, the Authority found that there were no substantial reasons for believing that as a necessary and foreseeable consequence of being returned from Australia, that there would be a real risk the applicant would suffer significant harm. The Authority was not satisfied the applicant met the criteria under s.36(2)(aa) of the Act.

Grounds of Appeal

1. In a further, further amended application filed on 20 December 2019, the initial Grounds 11 to 14 were abandoned. The applicant submitted that Grounds 1 to 4 and 10, in fact, depended upon the assertions made in Grounds 5 to 9.

2. After discussion with Counsel for the applicant, during the course of oral submissions, it was agreed that it was appropriate that the Court merely dealt with Grounds 5, 6, 7, 8 and 9. It was not necessary for the Court to deal with the grounds that had been abandoned and the grounds which in turn depended upon the other grounds, as indicated above.

3. The grounds of appeal which are relied upon are as follows, verbatim:

   5.   IAA erred in finding that the Applicant’s passport was valid;

   Particulars
   See grounds 5-6 below

   6.   IAA erred in its reasoning process to conclude that the passport was valid: implicit in its reasoning is that the Applicant’s use of the passport in gaining departure from Sri Lanka and obtaining a Malaysian Visa thereby validated and demonstrated the passport validity, when the passport itself was faulty and inaccurate in as much as the Applicant’s identity (name was incorrectly spelt) was not correct on its face and so could not be a valid proof of his identity in any event;

   Particulars
   Paras 20 & 21

   7.   IAA erred in its interpretation of the DFAT 2017 report, where it impliedly asserted that there were only 2 types of person “who may remain of security interest to the Sri Lankan Government, being high profile LTTE members (ie, leaders of the organisation or those suspected to have committed terrorist or criminal acts during the conflict or to have provided weapons), or low profile former members (ie., former combatants, administrative staff or other persons who have provided non-military support) who have not undergone rehabilitation”, such assertion being incorrect, when the Report indicates there are other persons who may be the subject to monitoring and who by inference may otherwise need international protection.

   Particulars
   Para 24

   Paras 3.32 – 3.42 (DFAT Report 2017)

   8.   IAA erred in its interpretation of the DFAT 2017 report, where it impliedly asserted there are only 2 types of persons “who may remain of security interest to Sri Lankan Government, being high profile LTTE members (ie., leaders of the organisation or those suspected to have committed terrorist or criminal acts during the conflict or who have provided weapons), or low profile former members (ie., former combatants, administrative staff or other persons who have provided non-military support) who have not undergone rehabilitation” such assertion being incorrect, when the report merely indicates classes of persons who may be subject to arrest, monitoring or detention or rehabilitation but does not assert the Government has a particular security interest in only the high or low profile groups.

   Particulars
   Para 24

   Paras 3.32 – 3.46 (DFAT Report 2017)

   9.   The Tribunal erred in not accepting that the applicant’s profile would be of ongoing interest to any Sri Lankan authorities almost 10 years later due to his limited support for the organisation’s activities between 2002 and 2005, or for his links to three persons who were alleged to be members of the LTTE in 2008; or that the applicant faces a real chance of harm arising from his Tamil ethnicity, his real or perceived LTTE associations, his limited support for the LTTE, his association with persons suspected of being involved with the LTTE or his previous interactions with the CID, or the SLA, and that he would not be of ongoing interest to Sri Lankan authorities. (Para 29)

   In so doing the Tribunal

   i.failed to ask correct questions being at least whether the DFAT report may include a person not otherwise directly falling within the categories as enumerated in the UNHCR report 3.32, and whether the applicant directly or indirectly falls into categories not otherwise specifically enumerated in the UNHCR report 3.32., and/or

   ii.failed to properly consider that the applicant may have directly or indirectly fallen into the categories not otherwise specifically enumerated in the UNHCR report 3.32 and accordingly whether the applicant faces a real chance of persecution.

The Applicant’s Submissions

1. Counsel for the applicant notes in submissions at Ground 1 to 4 and 10 of the further, further, further amended application filed on 20 December 2019, depends upon Grounds 5 to 9.

2. In relation to Grounds 5 to 6, Counsel submits that the Authority concluded that the applicant claimed his passport was a fake in order to explain the discrepancy between the date that the passport was issued and the narrative he provided from his departure from Sri Lanka.

3. Counsel submitted that the Authority inferred that the applicant decided to obtain the passport and had considered departing Sri Lanka, prior to any interactions he had with the CID officers. This discloses an error in reasoning, in as much as the applicant considered the passport was a fake and that his name in the passport was misspelt. The combination of these two points led to the inference that the dates shown on the passport, as the date of issue, must be wrong in the passport as it was prepared at a later time after the applicant had been visited by the CID officers in June 2008.

1. Counsel submitted that the Authority could not reasonably have made either of the above conclusions or inferences. The fact that other entities in Malaysia may have relied upon the passport neither points one way or the other. It is the applicant’s submissions that the Authority’s conclusion and inference referred to above, were unreasonable and no reasonable decision-maker could have been made them.

2. In relation to Ground 7, Counsel for the applicant notes that the conclusions at paragraph 24 of the Authority’s decision, set out who the persons are that may be of interest to the Sri Lankan Government. This relied upon a DFAT report, which is referenced in the decision. It was submitted that the Authority misinterpreted the DFAT report and misunderstood the relevant provisions, which had led the Authority to make findings that are unreasonable.

3. Counsel for the applicant pointed out that the UNHCR eligibility guidelines for Sri Lanka, noted that a person’s real or perceived links to the LTTE “may” give rise to the need for international protection and the Court emphasises the word “may”. Although the nature of these links can vary, they may include the following and reference is made to six bullet points that set out various categories of people.

4. Counsel for the applicant submitted that the use of the word “may” leaves the categories of links that could give rise to a need for protection open. It was submitted that the Authority considered that the range of categories of persons of interest to Sri Lankan authorities was in fact closed, not open. In this case, the applicant claimed the CID officers held an opinion that he possessed relevant information about suspected LTTE members, being his three work colleagues. It was submitted that the Authority failed to recognise that these facts could mean that the applicant fell within or without a category, covered by the UNHCR and DFAT reports. In any event, there was a possibility that the applicant had a need for international protection. It was submitted that the Authority had come to a conclusion that no reasonable decision-maker could have arrived at.

5. In Ground 8, Counsel for the applicant repeats the submissions in Ground 4 and submits that the Authority erred in its interpretation of the reports and came to a conclusion that no reasonable decision-maker would have arrived at.

6. In Ground 9, Counsel for the applicant asserts the Authority incorrectly considered that the applicant did not fall within the categories enumerated in the UNHCR and DFAT reports. The Authority, however, accepted the applicant was threatened by officers of the CID. It was submitted that the Authority failed to ask the correct questions or properly consider if the applicant could have fallen in the categories outside those enumerated in the various reports and, as a result, he does face a real chance of harm arising from his Tamil ethnicity, his limited support for the LTTE, his association with persons suspected of being involved with the LTTE or his previous interactions with the CID officers.

The First Respondent’s Submissions

1. In relation to Grounds 5 and 6, Counsel for the first respondent submits that the applicant takes issue with the Authority’s findings and reasoning processes concerning the applicant’s passport. Whether the passport was genuine or not, was a question of fact for the Authority to determine within its jurisdiction. Mere disagreement with the Authority’s conclusions on a question of fact, is not a proper basis to allege jurisdictional error. The applicant appears to be contending that the Authority ought to simply have accepted the evidence that the applicant gave to the delegate, that he was “unsure if his passport was genuine”, to find that the passport was a fake and that his explanation for the discrepancy between his oral evidence, that he obtained the passport after June 2008 events and the fact that the date of the issue of the passport is shown as being April 2008.

2. Counsel for the first respondent submitted that these were matters of fact for the Authority to determine. The Authority’s reasoning was open to it, based on an assessment of inconsistencies. The Authority did not require positive evidence to reject the applicant’s suggestion that his passport was a fake. There was nothing illogical or legally unreasonable in the conclusion.

3. Counsel for the first respondent submitted that Grounds 7 and 8 relate to the Authority’s consideration of the 2007 DFAT report. The applicant submits that the Authority misinterpreted the DFAT report, causing it to make unreasonable findings. No such misinterpretation is evident from the Authority’s reasons in paragraphs 24 and 29 of its decision. The Authority made no finding, either expressly or impliedly, that the categories of persons who might be imputed with LTTE links were closed. The use of the word “may”, is such to suggest that there was no reason to suggest that the categories of persons referred to at 3.32 of the DFAT report and the categories of persons in 3.38 and 3.42, do not overlap.

4. Counsel for the first respondent submitted that the Authority, by reference to the DFAT report, considered the applicant’s claims. The Authority concluded the applicant was not a person who had been imputed to be a member of the LTTE in 2008 and the Authority was not satisfied his profile would be of ongoing interest to Sri Lankan authorities, almost 10 years later, due to his limited support of the LTTE in 2000 and to 2005 or his links to persons who are alleged to be involved with the LTTE in 2008.

5. The essence of the applicant’s complaint is that the Authority should have made different findings having regard to country information or it should have interpreted that country information in a different way. It is well established that it is within the Authority’s jurisdiction to select and weigh country information as it sees fit (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”)). Counsel for the first respondent submitted that the Authority’s findings were open to it, on the evidence before it and this does not reveal jurisdictional error.

6. Counsel for the first respondent submits that in Ground 9, the applicant challenges the conclusions of the Authority expressed at paragraph 29 of its decision. The applicant submits that the Authority failed to ask the correct questions. The Authority failed to properly consider that the applicant may have directly or indirectly fallen into a category that was not otherwise specified in the DFAT report. Counsel for the first respondent submits that there is no basis for it to be said that the Authority misconstrued the country information or interpreted that information as closing categories of persons who might be imputed with LTTE connections.

7. In any event, the country information and the weight to be attached to it was a matter for the Authority. The Authority gave cogent reasons at paragraphs 27 to 29 of its decision, finding that the applicant did not have a profile that would put him at risk. Counsel for the first respondent submits that no jurisdictional error is established.

Consideration

1. The grounds of appeal in this matter are, regrettably, less than clear. They have been considerably amended since it was first filed but, even then, a lack of clarity exists, that does not make it easy for the Court to determine exactly what was being argued. The written submissions provided by Counsel for the applicant do not necessarily insist in providing a degree of clarity, even then, to the arguments that were put forward.

2. At first glance, it appears that each of the grounds of appeal suggest legal unreasonableness, that being where the decision-maker has come to a conclusion that was so unreasonable, that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (“Li”)).

3. The test for legal unreasonableness is stringent and will only arise in rare cases. It is invariably fact-dependent. Reasonableness is not a means for challenging a decision on the basis that a Court disagrees with the considerations of matters or evaluative judgments made by a decision-maker (see Li at [30] and [113]).

4. In the Court’s view, the applicant’s complaints in each of the grounds, mischaracterises the Authority’s actual finings and misconceives the role it was required to undertake. The Authority was tasked with assessing the applicant’s risk of harm in the reasonably foreseeable future if he was removed from Australia back to Sri Lanka. The Authority’s conclusions that the applicant did not face a real chance of serious harm or risk of significant harm, for the reasons advanced, were open to it on the available grounds, in the Court’s view and for the reasons it has gave.

5. These and the other concerns identified by the Authority, provide a proper and rational context to its conclusions that the applicant did not face a real chance of harm for the reasons he claimed. The allegations of unreasonableness, illogicality or irrationality cannot be maintained. That finding itself might be enough to dismiss the application in its entirety. However, as a matter of caution, it is appropriate that the Court look at each of the grounds individually that were left for consideration after the further amended applications.

6. Grounds 5 and 6 deal with the conclusions of the Authority in relation to the passport of the applicant. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).

7. The Authority did not accept the applicant’s versions of events in relation to why he had a passport, which was issued prior to the incident, which the applicant claims crystallised his intention to leave Sri Lanka. The Court is satisfied that this finding was open to the Authority on the evidence, for the reasons it gave, noting that the applicant had varied his evidence and the material before the Authority. The Court is not satisfied that the findings were tainted in reaching a finding that was without a logical, probative basis. This included the issue of credibility of the applicant, which, indeed, are matters for the Authority (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109).

8. Grounds 7 and 8 relate to the Authority’s consideration of the DFAT and UNHCR reports. The applicant never claimed to be a member of the LTTE or, indeed, that he fell into any one of the categories which both the DFAT and UNHCR reports indicated, may require international protection. The Court is satisfied that the Authority considered all of the material related to the applicant, including his low level links to the LTTE for a limited period of time and his relationship with his three colleagues. The Authority accepted the applicant had been questioned by the CID in relation to the three colleagues and, indeed, was threatened.

9. The Authority found, however, that after a passage of some 10 years and given all of the evidence available to it, the applicant did not have a profile that would attract adverse attention if he were to be returned. The Court is satisfied that this finding was one that was reasonably open to the Authority upon the evidence and the outcome is not tainted by any form of legal unreasonableness, illogicality or irrationality. The Court agrees with the first respondent that it is well established that the Authority’s use of country information and the weight it attaches to it, is a matter for the Authority (see NAHI). No jurisdictional error is established.

10. It was critical in the findings of the Authority at paragraph 29 of its decision, which dealt with all of the applicant’s claims, the Authority considered the background of the country information reports. The Authority was not satisfied that the applicant either came into a closed category which was outlined within each of the reports or, indeed, that he came into any other category, which was open. No jurisdictional error is established.

11. Ground 9 is really a restatement of Grounds 7 and 8. The Court is satisfied that the Authority did ask the correct questions. The Authority properly considered whether or not the applicant might have directly or indirectly fallen into the category of a person who required international protection. The Authority found, on a basis reasonably open to it, that the applicant did not fall into any such category.

12. The Authority considered all of the claims and all of the evidence and simply came to a view which the applicant disagrees with. This finding was reasonably open to it on the evidence and is not tainted by any legal unreasonableness, it simply invites merits review. No jurisdictional error is established.

Conclusion

1. Accordingly, I dismiss the application.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  2 April 2020