FEO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1415
•11 November 2022
FEDERAL COURT OF AUSTRALIA
FEO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1415
Appeal from: FEO17 v Minister for Immigration [2020] FCCA 648 File number(s): NSD 303 of 2020 Judgment of: RARES J Date of judgment: 11 November 2022 Catchwords: MIGRATION – Held: appeal dismissed Legislation: Migration Act 1958 (Cth) s 36(2)(a), (aa) Cases cited: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 33 Date of hearing: 11 November 2022 Counsel for the Appellant: Mr G Foster Solicitor for the Appellant: Sentil Solicitor Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 303 of 2020 BETWEEN: FEO17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
This is an appeal from the decision of the Federal Circuit Court of Australia refusing the appellant constitutional writ relief against the decision of the Immigration Assessment Authority made on 20 November 2017 that affirmed the decision of a delegate of the Minister made on 26 April 2017 to refuse the appellant’s application for a safe haven enterprise visa: FEO17 v Minister of Immigration [2020] FCCA 648.
BACKGROUND
The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived at Christmas Island in 2013. At his interview by Departmental officers there, he told them that his passport, which he used for travel en route to Australia, had been acquired legally in Jaffna, Sri Lanka in 2008. He could no longer remember its number.
Subsequently, the Minister allowed the appellant to apply for the visa. In his application that the Minister’s Department received on 30 December 2016, he answered question 50 by stating that he had left Sri Lanka legally on his passport issued on 24 April 2008 and gave its number. He said, in his statement accompanying the visa application, that he had decided to leave Sri Lanka in 2008 and obtained a passport with the assistance of an agent, whom, he claimed:
went into the passport office and managed to get a passport with my birth certificate. I am not sure the passport is genuine or not although my name, date of birth and photo in it and name of misspelled as [one of three versions of one of his names that was in the material before the delegate and the Authority].
The appellant attached a copy of his Sri Lankan birth certificate that had been issued on 11 November 2014, in which his name was spelled differently to that in the copy of the identification page in the passport that he supplied and which he appears to have used in completing the details of the visa application. He did not appear to have had that identification page available when he was interviewed at Christmas Island.
THE AUTHORITY’S DECISION
There is no issue in this appeal as to the Authority’s summary of the appellant’s principal claims, relevantly, as follows:
·between 2002 and 2005, the appellant provided limited support to the Liberation Tigers of Tamil Eelam (LTTE) and attended a number of LTTE memorial events;
·between 2004 and 2008, the appellant worked in a machinist workshop in the Jaffna district. During his employment, he introduced three friends to the owner of the workshop who subsequently employed them;
·during June 2008, he was twice questioned by the Sri Lankan Police Criminal Investigation Division (CID) about his knowledge of his three friends. The CID believed them to be members of the LTTE;
·the appellant was unable to assist the CID with their inquiries. He was threatened by the CID that he would be killed unless he provided information about his three friends (now colleagues);
·following these events, the appellant fled Sri Lanka to Malaysia as he was afraid for his life. He lived in Malaysia between 2008 and 2013;
·in 2013, the appellant departed Malaysia and came to Australia via Indonesia; and
·he feared that, if returned to Sri Lanka, he would be subjected to discrimination, torture and possibly death at the hands of 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.
The Authority found that:
·the appellant had provided a consistent narrative of his claims and a number of identity documents to support them throughout the visa application process, but that there were several discrepancies in the documents as to the correct spelling of his name;
·having considered those discrepancies, it was satisfied that his explanation for the inconsistencies was reasonable and that the discrepancies arose from transliteration errors and his fears that he would be denied refugee status in Australia and, earlier, in Malaysia were he to have contradicted any of the information contained in the documents; and
·it accepted his claimed identity and that he had been born, lived and worked in the Jaffna district as he claimed.
The Authority set out the appellant’s account of the matters giving rise to his claims that had occurred to him in Sri Lanka as follows:
·the appellant claimed that he had played a minor role in LTTE remembrance ceremonies and memorial services in the Jaffna district between 2002 and 2005 because he felt coerced in the sense that refusal could be interpreted by the LTTE as a rejection of its goals and any person who did so might suffer consequences as a result;
·he had not provided any support to the LTTE beyond minor administrative tasks and that when the LTTE attempted to recruit him, he declined to become a member and had no other links with it;
·during that period, he became friendly with three other young men (ie: the three friends) whom he met attending LTTE memorial services;
·during the same period, he had been subjected to minor instances of coercion from members of the Sri Lankan Army stationed in the area;
·between 2004 and 2008, he worked as an apprentice at a machinist workshop and, from time to time, known members of the LTTE would arrive at his workshop to have some routine work done. Because he completed such tasks as part of his regular duties, such conduct could be interpreted by Sri Lankan authorities as evidence of his support for the LTTE, should he be returned to Sri Lanka;
·in January 2008, his employer asked him if he knew of other persons who might wish to be apprentices at his workshop, and this was the occasion for him to bring his three friends there to introduce them to his employer, who accepted his recommendation that they be employed;
·in early June 2008, the three friends stopped attending the workshop and the appellant was unclear as to how or why that had occurred;
·initially, he had thought that the three friends may have been sent away on some task by his employer;
·about three days after his three friends ceased to attend at work, CID officers approached him, when he was alone, and questioned him about his missing colleagues. He told the CID officers that he could not provide them with any information because he was unaware of the circumstances of the three friends or their whereabouts. The officers told him that the three friends had some link to the LTTE and that he should find out where they were currently located. On this occasion, he was not mistreated, but felt intimidated by the police interest in his three friends;
·about one week later, the CID officers returned to the workshop and questioned him a second time about the three friends. When he informed them that he had not been able to find out any information that would be of assistance to the CID’s inquiries, they became angry with him, held firearms to his head and threatened to kill him if he failed to supply them with information;
·he became very scared as a result of that second interaction with the CID and reported the matter to his employer, whom he found unsympathetic and who made statements to the effect that the appellant was entirely responsible for the employment of the three friends who were now suspected to be LTTE supporters. His employer informed the CID of the appellant’s relationship with the three friends;
·after those events, he feared for his life and decided to flee Sri Lanka for his own safety. He quit his job and went into hiding in Colombo, believing that he would not be safe in the Jaffna district. He stayed in hiding for about a month, during which time he approached an agent to assist him in obtaining a passport and tourist visa for Malaysia and that, having secured those, he flew on a commercial flight to Malaysia in August 2008;
·his Malaysian tourist visa expired three months after his arrival in Malaysia and that, having no legal reason to stay, in 2009, he registered with the Office of the United Nations High Commissioner for Refugees (UNHCR) and, in 2012, the Sri Lankan Tamil Refugees Organisation of Malaysia. Those organisations had supplied him with several identity documents, demonstrating that he had been resident in Malaysia for the period between 2008 and 2013, which the Authority accepted; and
·during 2009, CID officers visited his mother’s home on one occasion in order to question him and that this demonstrated that the Sri Lankan Police had never lost interest in him despite his departure for Malaysia the previous year. Were he to return, the Sri Lankan authorities would still maintain an interest in him despite the passage of time and he would be detained, likely to be tortured and possibly killed by the authorities because of his actual or imputed connection to the LTTE.
THE AUTHORITY’S REASONS
The Authority found some aspects of the appellant’s claims to be problematic and his claims concerning his three friends unconvincing. It found that he had described them during his interview with the delegate in 2017 as being “very close friends”, but to have been surprised when they all failed to attend work in early June 2008, had no knowledge of where they were or what they were doing, and only became aware of their links to the LTTE after the CID questioned him. The Authority concluded that the appellant knew more about the three friends than he was willing to tell the CID officers in 2008 or the Australian authorities since his arrival here. Nonetheless, it accepted that the Sri Lankan Police thought the three friends had links to the LTTE and that the appellant had been questioned on that basis.
The Authority found:
20.There are other difficulties with the applicant’s narrative. He has claimed that he decided to depart Sri Lanka after the events of June 2008 and that only then did he attempt to obtain a passport and a visa. The applicant has not provided an original passport to Australian authorities, but he has provided a scanned copy of the front page from his passport which contains basic biographical details about the passport owner (the applicant), and administrative particulars about the document itself. This copy records that the applicant’s passport was issued by Sri Lankan Government in April 2008, two months prior to the events of June 2008. At his 2017 protection visa interview, when challenged by the delegate about the discrepancy between the date he claimed he acquired his passport (post June 2008) and the date his passport was actually issued (April 2008), the applicant was unable to provide a reasonable explanation. He stated that he was unsure if his passport was genuine, and suggests the agent he used to obtain the passport may have given him a fake. In support of this assertion, he notes that his name is spelt incorrectly in the passport.
21.I am unconvinced by this explanation. I note that the applicant has provided a different reason for the mistaken spelling of his name in the documentation he has presented in support of his claims (transliteration error) which I find more credible. I have also taken into consideration that the applicant was able to use his passport to obtain a Malaysian tourist visa, and to depart Sri Lanka on a routine commercial flight in 2008. He also used the passport to legally enter Malaysia and later provided the passport to the UNHCR as evidence of his Sri Lankan citizenship in 2009. I am not satisfied by the applicant’s claim that he thinks the passport is a fake, and I conclude that he has made this claim in order to explain the discrepancy between the date the passport was issued, and the narrative explanation he has provided for his departure from Sri Lanka. I infer from this information that the applicant had decided to obtain his passport, and had considered departing Sri Lanka prior to any interactions he may have had with the CID.
(emphasis added)
The Authority found that the Sri Lankan Army controlled the Jaffna district from 1995 and garrisoned units there. It accepted as credible the appellant’s claims that he was coerced by members of the Sri Lankan Army. This was also consistent with country information, which suggested that there were still military units stationed throughout the former conflict areas in the northern province and a higher proportion were stationed around Jaffna. It found that the security situation in the north and east of Sri Lanka “has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life”.
It found that the Sri Lankan Police were then responsible for civil affairs across the country. It found, based on country information, that the Sri Lankan Police was a trained and an active police force, albeit that the majority of its members had been recruited and gained their experience during war time and that significant institutional changes were necessary to transform it to a civilian police force.
The Authority found that the appellant’s claims of mistreatment in June 2008 while being questioned by CID officers were consistent with the country information and indicative of standard interrogation techniques used by Sri Lankan security agencies during the period of the conflict, in which the Sri Lankan Police played an active pro-government role, leaving members of the Tamil minority particularly vulnerable to the type of mistreatment that the appellant had suffered. The Authority said:
24.Information before me indicates that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including due to separatist or criminal activities. While the Sri Lankan authorities maintain an interest in former real or imputed LTTE members and a large number were previously detained, only a small number continue to be held by the Government. Those persons who may remain of security interest to the Sri Lankan Government are persons who were high profile former LTTE members (i.e. leaders of the organisation or those suspected to have committed terrorist or serious criminal acts during the conflict or to have provided weapon), or low profile former members (i.e. former combatants, administrative staff or other persons who provided non-military support) who have not undergone rehabilitation.
25.DFAT’s most recent assessment of the situation in Sri Lanka is that the monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities. Since 2015, genuine attempts have been made at reconciliation between the Sinhalese community and the Tamil minority. DFAT reports that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since 2015. The Sirisena Government has prioritised human rights and reconciliation and has made significant progress, including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era back to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA) and committing to reform the PTA; and engaging constructively with the United Nations. The Government also established an Office of National Unity and Reconciliation (ONUR) to develop a national policy on reconciliation.
(emphasis added, footnotes omitted)
The Authority’s reference (in par 25 quoted above) to the country report of the Department of Foreign Affairs and Trade (2017 DFAT report) referred to and summarised what DFAT had stated in that report at [3.32], namely:
The most recent UNHCR Eligibility Guidelines for Sri Lanka (December 2012) note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:
•persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
•former LTTE combatants or ‘cadres’;
•former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
•former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
•LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
•persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
(emphasis added)
The Authority found that, notwithstanding its concerns about the appellant’s truthfulness concerning his knowledge of the three friends, it accepted that he had been questioned by officers of the CID twice during June 2008 about their whereabouts, their links to the LTTE and that, on the second occasion, the CID officers had threatened to kill him unless he cooperated with them and had pointed weapons at him in order to emphasise the seriousness of their threats. However, the Authority observed that the appellant had not claimed that the CID officers imputed him to be a member of the LTTE nor had they on either occasion detained, charged, arrested him or otherwise inferred him to be involved with the LTTE.
It found that, at his interview with the delegate, the appellant had said that there were no outstanding Sri Lankan arrest warrants against him. It found that, after the events concerning his three friends and his interrogations, the appellant had been able to depart Sri Lanka legally on a routine commercial flight from Colombo Airport and that he had not had any contact with the three friends since their disappearance in June 2008.
Given the passage of time, the Authority was unconvinced that the appellant’s previous links with the three friends would raise his profile to a level that would be of interest to the Sri Lankan Police were he to return to Sri Lanka. It found that credible information before it indicated that Tamils living in Sri Lanka could experience some societal discrimination on the basis of ethnicity, but there were no laws that discriminated upon that basis and such discrimination did not result from government policy. It also found that treatment of Tamils by the Sri Lankan government had improved considerably since the end of the conflict in 2009.
It found:
29.I am not satisfied that the applicant was imputed to be a member of the LTTE when questioned by the CID in 2008. Having considered the evidence before me, I am not satisfied that his 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. I do not accept that the applicant would be imputed to be a member of the LTTE if returned to Sri Lanka. I am not satisfied that 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 his previous interactions with the CID, or the SLA should he be returned to Sri Lanka.
(emphasis added)
The Authority also rejected the appellant’s claims to fear harm based on his illegal departure and failed attempt to seek asylum in Australia, which are not matters arising in the appeal. It then affirmed the delegate’s decision to refuse to grant the visa.
THE PROCEEDING BEFORE THE TRIAL JUDGE
The trial judge dealt, relevantly, with the grounds of review in the further, further amended application on which the appellant’s counsel, who appeared below and also on the appeal, relied. Essentially, there were three substantive grounds below, which have been pressed on the appeal as errors of the trial judge, namely that the Authority erred:
(1)in its reasoning process in finding that the appellant’s passport was valid, given its misspelling of the appellant’s name;
(2)in misinterpreting the 2017 DFAT report by impliedly finding that there were only two types of person who would remain at risk of being subjected to persecution by the Sri Lankan government, namely, high profile LTTE members or low profile ones who had not undergone rehabilitation, in circumstances where both the 2017 DFAT report and the UNHCR guidelines, to which it referred, were not exhaustive of the categories of persons who might be at risk were they to return to Sri Lanka; and
(3)in not accepting that the appellant’s profile would be of ongoing interest to Sri Lankan authorities almost 10 years later because of his limited support of the LTTE’s activities between 2002 and 2005, his links to the three friends alleged to be LTTE members in 2008, his Tamil ethnicity, his real or perceived associations with, limited support for and or association with persons suspected of being involved with the LTTE and his previous interactions with the CID and or the Sri Lankan Army.
The trial judge correctly observed that the grounds of review before him, which were repeated substantively in the notice of appeal, were less than clear, even after having been considerably amended over the course of the proceeding below. His Honour said that the three distilled grounds suggested that the Authority had acted in a legally unreasonable way (but that submission was not made on the appeal and I need not deal with it).
His Honour found that the appellant’s complaints in each ground mischaracterised the Authority’s findings and misconceived its role, namely, to assess the risk of serious or significant harm in the reasonably foreseeable future were he to be removed from Australia to Sri Lanka.
The trial judge rejected the first ground. He found that the Authority’s conclusions that the appellant did not face a real chance of serious or significant harm for the reasons it gave were open on the material before it. His Honour was satisfied that the Authority had not committed a jurisdictional error in not accepting the appellant’s version of events as to how he came to have the passport. He held that the Authority was entitled, and had a proper basis, to conclude that the passport was genuine.
His Honour rejected the second ground on the basis that the Authority had considered all of the material relating to the appellant, including his low level links to the LTTE for a limited period of time, his relationship with the three friends, and its finding that he had been questioned and threatened by the CID officers.
His Honour rejected the third ground. He said that it was open to the Authority to find that, after a passage of some 10 years and, based on all the evidence before it, the appellant did not have a profile that would attract adverse attention of the authorities were he to be returned to Sri Lanka. His Honour found that, in par 29 of its reasons, the Authority had considered the country information reports and was not satisfied that the appellant either fell within a closed category outlined within the 2017 DFAT report or UNHCR guidelines or, indeed, that he came within any other category of person that enlivened Australia’s protection obligation. He found that, in concluding that the appellant was not entitled to a protection visa, the Authority had asked itself the correct questions and properly considered whether or not the appellant, directly or indirectly, might have been a person included in a category entitling him to protection. His Honour found that, in effect, the appellant was simply expressing disagreement with the Authority’s findings on his claims and that that did not give rise to jurisdictional error. Accordingly, he dismissed the application with costs.
THIS APPEAL
The appellant argued that the appeal should be allowed because the Authority had engaged in illogical or irrational reasoning in dealing with his claim that he did not know whether the passport was genuine because of the misspelling of his name and the circumstances in which he had obtained it. He contended that the Authority’s finding, that the misspelling was due to a transliteration error and the passport was genuine, was inconsistent with the evidence in the birth certificate and the passport itself as to the spelling of his name so that it was not open to the Authority to have found the passport to have been valid. The appellant submitted that each of the second and third grounds was, in effect, the converse of the other. He argued that it was unreasonable for the Authority to arrive at its interpretation of the 2017 DFAT report’s summary of the UNHCR guidelines. That was, he contended, because it had treated the word “may” in the summary as restricting those who could be at risk of harm by reason of their historical, real or imputed, association with the LTTE to only the six categories identified. He submitted that the Authority should have recognised that the list was not exhaustive and that its failure to consider his individual circumstances, otherwise than by reference to those categories, demonstrated a jurisdictional error. He argued that was because he was a person with a profile based on his interrogations and threats by the CID officers in 2008, connected to the perception of his links to the three friends and connection to the LTTE.
CONSIDERATION
In my opinion, the grounds of appeal have no substance. They fail to engage with the necessity that grounds of appeal in a judicial review proceeding must disclose why the trial or primary judge allegedly erred in addressing whether the challenged administrative decision was affected by jurisdictional error. Rather, the present grounds of appeal and the grounds of review below amounted to no more than complaints that the Authority arrived at erroneous factual conclusions. In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [44], Gleeson CJ, Gummow, Kirby and Hayne JJ said:
When stating the position in Quin ((1990) 170 CLR 1 at 36), Brennan J also stressed:
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
However, in Australia this situation is the product not of any doctrine of “deference”, but of basic principles of administrative law respecting the exercise of discretionary powers. Mason J spoke to similar effect in Minister for Aboriginal Affairs v Peko-Wallsend Ltd ((1986) 162 CLR 24 at 40. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576-578, 597-598) when he observed:
“The limited role of a court [in] reviewing the exercise of an administrative discretion must constantly be borne in mind.”
Nor, as Brennan J pointed out in Waterford v The Commonwealth ((1987) 163 CLR 54 at 77), is there an “error of law simply in making a wrong finding of fact”.
(emphasis added)
The first ground contended that his Honour erred in rejecting the submission that the Authority should not have found the passport to be valid. The ground below, and as argued on appeal, is simply an engagement in merits review of material before the Authority on which it was able to make a finding of fact as to the genuineness of the passport. It was for the Authority to find the facts. The appellant had provided information, that the Authority had before it, that he had obtained the passport legally as well as saying that he did not know whether it was genuine. The Authority was entitled to have regard to the fact that the appellant had said that the passport was obtained legally for himself, he had been able to depart Sri Lanka on it lawfully without being of interest to the authorities there, to enter Malaysia, and then to obtain documents from the UNHCR there as to his status.
I am unable to see any arguable jurisdictional error in the Authority’s factual conclusion that the passport was valid and that a transliteration error explained the discrepancies between the spellings of the appellant’s name in the birth certificate and other material before it, as compared to how it was spelt in the passport. The discrepancy comprised the presence or absence of one letter in the middle of one of his names.
The second and third grounds were interrelated. The Authority made findings of fact as to what the country information revealed as to persons or categories of person who might be at risk of persecution or otherwise in need of protection under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth). Those findings were on matters of fact.
True, it is, that the 2017 DFAT report’s summary was not exhaustive in specifying persons who had real or perceived links with the LTTE as being in a category of persons who may be entitled to protection. Nonetheless, there was nothing in the Authority’s dispositive reasoning in par 29 which indicated that it had relied only on those categories of persons who may be entitled to protection as exhaustive. It was not satisfied that the appellant’s profile would be of ongoing interest to any Sri Lankan authorities almost 10 years later due to his limited support for the LTTE, links to his three friends or that he would be imputed to be a member of the LTTE if he were returned to Sri Lanka. It made the ultimate finding that it was not satisfied that the appellant would face a real chance of serious or significant harm arising from his ethnicity, limited support for the LTTE, association with persons suspected of being involved with the LTTE or his previous interactions with the Sri Lankan Army or the CID, which, it had accepted, included his being threatened with death in the second of the two interrogations.
The appellant had relied on all of those circumstances as supporting his claims to protection. But, the argument failed to identify any failure of the Authority to consider those claims or any error in its findings in par 29.
In my opinion, the argument that the Authority had construed the word “may” in the 2017 DFAT report’s recitation of classes of persons as limiting those who may be at risk of persecution were they returned to Sri Lanka within the UNHCR guidelines, was nothing more than engaging in a contention that Brennan CJ, Toohey, McHugh and Gummow JJ proscribed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There, they warned against a court being concerned with looseness in language or unhappy phrasing of the reasons of an administrative decision-maker or construing them minutely and finely with an eye keenly attuned to the perception of error. I reject the appellant’s argument.
CONCLUSION
In my opinion, the appellant has failed to demonstrate that the trial judge erred or the Authority committed any jurisdictional error. For these reasons, the appeal must be dismissed with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 25 November 2022
0
6
1