Fpa18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 770
Federal Circuit and Family Court of Australia
(DIVISION 2)
FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770
File number(s): SYG 2975 of 2018 Judgment of: JUDGE LAING Date of judgment: 16 September 2022 Catchwords:
MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant a Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority failed to consider the applicant’s pattern of behaviour in leaving Sri Lanka – whether the Authority’s findings were illogical or unsupported by evidence – whether the Authority made findings based upon an unwarranted assumption – whether contended errors by the Authority occurred and were material – application allowed
Cases cited: CBY15 v Minister for Immigration and Border Protection [2020] FCA 878; 171 ALD 1
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
DAO16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 2; 258 FCR 175
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; 114 ALD 49
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; 165 ALD 463
SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 19 July 2022 Counsel for the Applicant: Mr N Li Solicitor for the Applicant: Allens Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2975 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
16 September 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 28 September 2018 in file number IAA18/04531 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa (original decision) into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the applicant’s application to it for review of the original decision according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Introduction
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 28 September 2018. The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
Background
The applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu faith. He arrived in Australia on 8 September 2012 as an unauthorised maritime arrival.
The applicant lodged an application for a Permanent Protection (Subclass 866) visa in August 2013, however this application was rendered invalid due to bars relating to unauthorised maritime arrivals.
On 20 November 2015, the Department of Immigration and Border Protection (as it then was) invited the applicant to apply for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
On 29 March 2017, the applicant lodged an application for such a visa. The applicant attended an interview in relation to this on 15 February 2018.
On 7 March 2018, the Delegate refused the applicant’s visa application. The decision was referred to the IAA for review on 12 March 2018.
On 28 September 2018, the IAA affirmed the Delegate’s decision refusing the applicant a protection visa.
The IAA’s decision
The IAA found that exceptional circumstances justified consideration of an updated report published by the Department of Foreign Affairs and Trade (DFAT) on 23 May 2018.
The IAA accepted that the applicant was a Tamil Hindu from Batticaloa, in the Eastern Province of Sri Lanka (at [7]). It accepted that the applicant’s elder sister joined the Liberation Tigers of Tamil Eelam (LTTE) in 1989, that she was a second lieutenant in the LTTE and that she was killed in November 1993. In this regard, the IAA stated (at [8]):
8.…He claimed that in August 2004 his aunt who he was living in their home received a letter from the LTTE notifying them that his elder sister had died on 11 November 1993. The applicant gave a copy of this letter, and I accept that it is an LTTE letter notifying the applicant’s parents of the death of his sister who is named in the letter. The applicant said there is also a video on youtube which commemorates his sister’s death in an LTTE battle and her picture is shown in this video, and he can provide it if needed. There is no copy of this video before me. However, the applicant has consistently made this claim about his sister being in the LTTE and her death in 1993, and I am satisfied his documentary evidence supports his claim.
The IAA also accepted that:
(a)the applicant was a fisherman and that there was a period of time in which one side of the river where the applicant fished was an LTTE area and the other side was an army area (at [11]);
(b)in February or March 2006, the applicant assisted his friend (S) and an LTTE person transport boxes he later learned contained weapons. This was the extent of his involvement with the LTTE (at [13]);
(c)from April 2006 to September 2007 the applicant was in Iraq working (at [14]);
(d)from February 2008 to December 2008 he was in Malaysia where he overstayed a tourist visa before returning to Sri Lanka (at [14]);
(e)whilst the applicant was in Iraq in 2007, his friend S was killed. S’s family suspected the Karuna Group of being the perpetrators (at [16]);
(f)in December 2007, Karuna Group members came to the applicant’s house asking questions about his identity (at [17]);
(g)the applicant returned to Sri Lanka in December 2008 and resumed fishing (at [18]);
(h)on 15 May 2009, the applicant was attacked with an axe in a random attack by persons associated with the Karuna Group and that he has a scar on his head in result (at [20]-[21]); and
(i)from around 2010 to 2012, the applicant and others in the village were subjected to round-ups during which he was detained for up to 24 hours and questioned about his sister and any other LTTE links ([22]).
The IAA did not accept that the applicant’s elder brother was attacked by the army because they thought he was LTTE, or that he was in jail for many years. The IAA found that the applicant had given limited details about this claim. He had not mentioned or elaborated upon it during his interview with the Department or in post interview submissions (at [9]).
The IAA also did not accept that the applicant’s aunty’s family had three sons in the LTTE movement. Again, this was not elaborated upon by the applicant. The applicant spoke only of his sister when asked during the interview whether any of his family members were involved with the LTTE (at [10]).
The IAA did not accept the applicant’s account regarding an approach from the Karuna Group in February 2012. In this regard, the IAA found (at [23]):
23.I do not accept that in February 2012, two persons from the Karuna Group came to his home and wanted to know his personal details, and they warned him that if he wanted to go anywhere he should report to them before doing so. In the SHEV interview, the applicant said that was all they said. I am not satisfied members of the Karuna Group would make such a demand without a stated purpose for it. The delegate asked if there was any other contact between him and the Karuna Group between 2009 and 2012, and the applicant said no, but he does not know if anything happened when he was not at home. The applicant agreed that he lived most of this time at home in Batticaloa district. He claimed that if Karuna’s Group had not said this to him, he would not have left Sri Lanka. His mother advised him to leave because she had a lot of fear. However, I am not satisfied members of the Karuna Group went to the applicant’s home and said he could not go anywhere, including leaving the country, without reporting to them first.
The IAA concluded that the Karuna Group and Sri Lankan authorities were not adversely interested in the applicant when he departed Sri Lanka. It observed that there was no evidence that they had been interested in the applicant since (at [26]).
The IAA observed that country information indicated that close relatives of high profile former LTTE members who were wanted by the authorities may be subjected to monitoring. However, the IAA considered that the information before it did not indicate that the applicant’s sister “was of a high profile”. The IAA was not satisfied that the applicant would be followed and monitored because of his sister, or that he would face discrimination from the community or government officials on this account (at [33]).
Having regard to the applicant’s background and country information, the IAA did not accept that there was a real chance that the applicant would be targeted for harm by the authorities, the Karuna Group or others (at [40] and [55]).
The IAA accepted that the applicant may be questioned and charged under the Immigrants and Emigrants Act 1949 on account of his illegal departure. This may result in him being detained for a limited period and incurring associated costs and a fine. The information before the IAA did not indicate that the penalties or processes would be discriminatory. The IAA did not accept that they would amount to serious harm or persecution. Nor did the IAA accept that the results of this would meet the definition of significant harm (at [41]-[54]).
The IAA was therefore not satisfied that the applicant was a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision (at [50] and [57]).
proceedings before this court
The applicant commenced proceedings before this Court on 24 October 2018. The following three grounds of review, contained within an amended application filed on 21 August 2019, were ultimately pressed by the applicant:
1.The Second Respondent fell into jurisdictional error by failing to consider material claims or a component integer thereof made by the Applicant.
Particulars
The Second Respondent failed to consider the Applicant’s claim of fear of serious harm by not taking into account his previous pattern of behaviour in leaving Sri Lanka to avoid persecution…
4.The Second Respondent committed a jurisdictional error in that it made findings that could not reasonably have been supported by the evidence before the Second Respondent.
Particulars
a.The Second Respondent erred in finding that the Applicant’s sister was not a high profile LTTE member by failing to have regard to the significance of the letter from the LTTE received by the Applicant’s family upon the death of his sister in combat.
b.The Second Respondent failed to consider the Applicant’s individual circumstances in light of the country information submitted by the Applicant, which contradicted the country information relied upon by the Second Respondent.
5.The Second Respondent fell into jurisdictional error in that it made a finding that could not rationally have been supported by the evidence before the Second Respondent.
Particulars…
c.The Second Respondent erred in finding that the events of February 2012 did not occur because the Karuna Group would not have demanded that the Applicant report to them if he intended to go anywhere, including leaving the country, without giving a reason for making such a demand.
Ground 1 – failure to consider pattern of behaviour in leaving Sri Lanka
In relation to ground 1, the applicant contended that the IAA failed to give proper, genuine and realistic consideration to his previous pattern of escaping Sri Lanka to avoid harm. The applicant relied upon the fact that the IAA accepted that the applicant left Sri Lanka between:
(a)April 2006 to September 2007 (for Iraq). This was after he had assisted his friend in transporting weapons in February or March 2006. The IAA recorded the reasons that the applicant had provided for his departure, being that there was tension in the area, his mother had wanted him to leave for his safety and he wanted to avoid forced recruitment by the LTTE.
(b)February 2008 to December 2008 (for Malaysia). The IAA also accepted that the Karuna Group questioned the applicant in December 2007.
The applicant contended that in finding that he would not be targeted for harm, the IAA failed to consider that the applicant’s “prior escapes” from Sri Lanka involved conduct that was consistent with a well-founded fear of persecution.
I do not accept that the IAA failed to consider, meaningfully, the applicant’s prior departures from Sri Lanka.
The IAA considered the reasons the applicant had given for the first departure at [15]. Those reasons did not indicate that “anything specific happened to him to make him depart the country”, but that the applicant had left during the war to avoid harm and to work in Iraq.
The IAA considered the applicant’s second departure at [17]. It observed that the applicant had given inconsistent evidence regarding the lead up to his departure. In his written evidence, the applicant had claimed that he had stayed with relatives for two months after members of the Karuna Group visited his home in December 2007. He had claimed that the lady he was staying with was scared of keeping him and so his mother had arranged for him to leave for Malaysia. In contrast, his evidence at the interview was that he had remained at his mother’s house before spending a few days with relatives before departing for Malaysia. The IAA concluded that the applicant had remained at his home for most of the time between September 2007 and February 2008 before departing for Malaysia.
The IAA accepted that the applicant departed Sri Lanka in August 2012 (at [24]). In this regard, the IAA rejected the applicant’s claim to have left because in February 2012 he had been questioned and required to report to the Karuna Group (at [23]).
From the above, it is apparent that the IAA did not consider that there was a “pattern of behaviour” of the kind that is now relied upon by the applicant. Instead, the IAA found that the applicant:
(a)left for Iraq during the war in 2006 to work and possibly also to avoid harm, although no clear finding was made in the latter regard. The IAA did not consider that this was in response to anything specific that happened to him;
(b)went to Malaysia in 2008. The IAA rejected that this was because he had been staying away from home for safety and the lady he was living with became scared; and
(c)came to Australia in August 2012. In relation to his, the IAA rejected the applicant’s claim to have left Sri Lanka because he was approached by the Karuna Group in February 2012.
Based on the above, I do not accept that the IAA was bound to find a corroborative pattern of the kind now alleged. It follows that I do not accept that it was obliged to take this into account in rejecting that the applicant was of adverse interest when he left Sri Lanka or that he would be targeted on return.
For these reasons, I am not satisfied that ground 1 ought to succeed.
Ground 4 – unreasonable finding regarding the sister’s profile
In relation to ground 4, the applicant contended that the IAA’s finding regarding his sister’s profile was not open on the evidence. Whilst reference in the particulars to the ground was also made to a failure to consider “the Applicant’s individual circumstances in light of the country information submitted by the Applicant, which contradicted the country information relied upon by the Second Respondent”, this aspect of the ground was unparticularised. As no separate aspect of the ground in this regard was developed through submissions, I did not understand it to be pressed.
The IAA’s findings regarding the sister’s profile were made at [33] of its decision:
33.According to information from DFAT, the Sri Lankan government acknowledges that LTTE ex-combatants and their families may continue to face discrimination both within their community and from government officials. However, DFAT reports that Tamil populations in the north and the east understand that many people were forced to participate in LTTE activities. In 2016, the TNA and the Tamil Civil Society Forum reported that authorities continued to follow and monitor former LTTE cadres and their families. DFAT understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. However, information before me does not indicate that the applicant’s sister who was in the LTTE and died in 1993 was of a high profile. I am not satisfied the applicant would be followed and monitored based on his sister having been in the LTTE, or that he would face discrimination from the community and government officials on account of his sister.
For the applicant, Mr Li observed that the IAA had accepted at [8] that the applicant’s sister was second lieutenant in the LTTE, that the family was given a letter from the LTTE notifying her death and that there was a YouTube video commemorating her death in battle. On this basis, he contended that the sister “prima facie qualifies as ‘high profile’” in the LTTE. Mr Li contended that the IAA was required to have some evidentiary foundation for a contrary finding.
I do not accept that the IAA required specific evidence in order not to be satisfied that the applicant’s sister had a high profile in the LTTE. The IAA’s finding in this regard was based upon the evidence before it regarding the sister’s profile. The IAA did not accept that this evidence established that she had the kind of “high profile” contemplated in the country information. I accept the submission made by Ms Hooper for the Minister that this finding was, essentially, negative in substance (see Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; 114 ALD 49 at [42]-[45]). The IAA did not require positive evidence to support it.
I also do not accept the submission made by the applicant’s Counsel, Mr Li, that the evidence before the IAA on this issue all pointed to the sister being “high profile”. Mr Li pointed to no unequivocal evidence before the IAA establishing that a deceased ‘second lieutenant,’ whose death had been reported in a letter from the LTTE and commemorated in a YouTube video, necessarily fell within this category.
In this regard, the Minister tendered the DFAT report that was relied upon by the IAA. The following was stated under the heading “High profile former LTTE members”:
3.50The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see Former LTTE members living outside Sri Lanka). Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE…
3.52DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.
Under the heading “Family members of LTTE”, it was stated:
3.59The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
I do not accept that the IAA was obliged to find that the applicant’s sister was “high profile” in the manner considered in the above country information. That information does not establish that a deceased ‘second lieutenant,’ whose death had been reported in a letter from the LTTE and commemorated in a YouTube video, necessarily fell within this category.
In these circumstances, I am not persuaded that it was closed to the IAA to conclude that the information before it did not indicate that the applicant’s sister had a relevantly “high profile”. Grounds such as unreasonableness or illogicality will not be demonstrated where “reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]; see also DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30]. Such is the case here.
It follows that ground 4 is unable to succeed.
Ground 5 – finding regarding the Karuna Group not rationally supported
In relation to ground 5, the applicant contended that the IAA made an unwarranted assumption, that was not open on the evidence, in considering that the Karuna Group would not have demanded that the applicant report to them without disclosing their motivations for making such a demand.
The impugned part of the IAA’s reasoning is at [23], which is extracted in full above. There, the IAA observed that the applicant had claimed that the Karuna Group came to his home wanting to know his personal details and warning him that if he wanted to go anywhere he should report to them before doing so. The IAA stated that it was “not satisfied members of the Karuna Group would make such a demand without a stated purpose for it”.
It has been held that the making of unwarranted assumptions may result in a conclusion that a decision maker has failed to duly consider the questions raised on the material (WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 at [54] per Lee and RD Nicholson JJ) or made a finding that is illogical, irrational or unreasonable (see DAO16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 2; 258 FCR 175 at [45]). Reliance was placed upon these cases by Mr Li in submissions.
The applicant also relied upon SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; 165 ALD 463 (SZHYH). In that case, the Tribunal had stated that it was “difficult to accept” that the government “would have waited for over two weeks before arresting” the applicant after a protest “if the government had wanted to stop him from organising protests” (see [32]). The Tribunal had also found it “difficult to accept” that the applicant would not have been required to surrender his passport as a condition of bail (see [34]). At [46]-[48], Allsop CJ considered that the above reasoning had involved unwarranted assumptions:
46.Related to these matters concerned with his leaving China was the assumption made that if the appellant had been on bail the authorities would have required him to surrender his passport. There was no basis in the country information or any other material from that assumption. The Tribunal was bringing (without any apparent basis in expressed expertise, country information on material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief…
48.It was critical to finding that the central event of his story did not take place that it was not credible that SZHYH would be arrested two weeks after a protest. There was no foundation in logic, or experience, or material for that assumption to be made. There was no country information to support it. One cannot say, one way or the other, without some foundation, that the PSB would or would not take one week, two weeks or three weeks to arrest someone. Why, one asks, is it difficult to accept? Again this is a personal assumption made without any apparent connection with country information, material or common experience of Chinese authorities.
These and other features of the Tribunal’s reasoning in SZHYH resulted in a conclusion that the decision under review in that case was legally unreasonable (at [53]-[55]).
Similarly, in CBY15 v Minister for Immigration and Border Protection [2020] FCA 878; 171 ALD 1 (CBY15), Kerr J reasoned:
132.I accept Mr Poynder’s submission that there was no evidentiary basis (such as country information) before it on which the Tribunal could have found that it was impossible to leave China while on bail without being apprehended. In my opinion the circumstance is indistinguishable from that referred to by Allsop CJ in SZHYH…
133.As Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] an unwarranted assumption by a tribunal as to a matter relevant to the formation of a view on the credibility of a corroborative witness may cause the tribunal to disbelieve and disregard that evidence. That in turn may be evidence of a failure duly to consider according to law the question raised by the material put before it.
134.There is nothing in the materials before the Court which entitled the Tribunal to proceed on the basis that a Chinese citizen who has been dealt with administratively for their association with Falun Gong and is on probation will be denied exit from that country.
135.In his evidence in the Tribunal, the First Appellant stated that he had been anxious as to whether or not he would be permitted to leave. I infer that he thought it possible that such a system as the Tribunal assumed existed would be in place. However, I also infer that he was prepared to take that risk, being on his account focused entirely on “escape”. It cannot be the case that a tribunal can lawfully base an adverse finding as to credit on the premise that a person fleeing persecution would not take a risk in doing so.
136.That is not to suggest that the Tribunal was not entitled to bring any special knowledge it had acquired in that regard to bear on its reasoning. However, in order lawfully to do so the Tribunal would have been required to have identified the basis of that knowledge and given the First Appellant an opportunity to contradict it. It did not do so in this instance. In the absence of any such express reasoning, an inference of the First Appellant’s want of credit for that reason was mere speculation on the Tribunal’s part.
For the Minister, Ms Hooper submitted that the above cases turned upon their own facts and circumstances. She observed that the unwarranted assumptions in SZHYH and CBY15 referred to above were among other bases upon which the decisions under review in those cases were impugned. This may be accepted. However, I find that the above cases are illustrative of instances in which assumptions about the behaviour of authorities or others, in other jurisdictions, have been found not to have been reasonably or logically open.
Such reasoning is analogous to the present case. In the present case, it may be accepted (as Ms Hooper submitted) that the IAA may legitimately have been concerned by the inherent limitations of the applicant’s claims within the context in which they were made. This context included the lack of other contact from the Karuna Group between 2009 and 2012 and the lack of any apparent reason for the Karuna Group’s contact with the applicant in 2012. The IAA was not obliged to accept the applicant’s claims in this regard. It did not necessary require evidence, such as country information, in order not to accept them.
However, at [23] the IAA went further than this. At [23], the IAA relied heavily upon reasoning that it could not be satisfied (within this context) that “members of the Karuna Group would make such a demand without a stated purpose for it” (emphasis added). That reasoning was, on its terms, premised upon an assumption that the Karuna Group would have been expected to have stated to the applicant their purpose in circumstances where this may otherwise not have been apparent to the applicant.
That assumption is difficult to reconcile logically with the material before the IAA. It did not appear to have any support in the country information. The information before the IAA indicated that the Karuna Group was a paramilitary group that was aligned with the Sri Lankan military during the war ([12] of the IAA’s decision). In light of available country information, the IAA accepted that the applicant had been previously questioned by the Karuna Group in 2007 (at [17]). It also accepted he had been questioned in round-ups (involving paramilitary groups) from around 2010 to 2012 (at [22]). This acceptance did not depend upon any consideration that the groups in question had explicitly stated the purposes of their questioning to the applicant, even if those purposes were capable of being discerned.
The IAA accepted that the Karuna Group was suspected of murdering the applicant’s friend in 2007 (at [16]). It had regard to country information indicating that after the war, various non-state pro-government paramilitary groups took on “increasingly criminal characteristics” ([19]). Having regard to this, the IAA accepted that the applicant been randomly, violently attacked with an axe in May 2009 by persons associated with the Karuna Group (at [20]-[21]).
The material before the IAA did not, in short, paint the picture of a group that was necessarily likely to undertake the nicety of explaining their purposes to a Sri Lankan Tamil when making demands. I was directed to no information before the IAA capable of indicating that this would have been an expected practice of this paramilitary group.
Within this context, it is not apparent why the IAA deemed the applicant’s claims regarding the approach from the Karuna Group in 2012 unlikely for the reason that the Karuna Group had not stated their purpose to the applicant. No logical basis for this incongruous reasoning (whether evidentiary or otherwise) is apparent upon the material before the Court.
It may be accepted that not every lapse in logic will result in jurisdictional error. However, in this case the IAA’s reliance upon the impugned reasoning was central to its rejection of the applicant’s claims regarding contact with the Karuna Group in 2012 (at [23]). This was relied upon by the IAA in finding that the applicant was not of adverse interest when he left Sri Lanka (at [26]). This in turn informed the IAA’s findings that there was no real chance of the applicant being targeted for harm by the Karuna Group, the Sri Lankan authorities or paramilitary or criminal groups in Sri Lanka (at [40]).
For the above reasons, I accept that jurisdictional error has been established under ground 5.
CONCLUSION
I have found that the IAA’s decision is affected by jurisdictional error. The application before this Court therefore succeeds.
I will hear the parties in relation to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 September 2022
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