FPT17 v Minister for Immigration

[2020] FCCA 2752

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPT17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2752

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Protection visa – whether the Authority failed to take into account relevant considerations – whether the Authority misconstrued relevant information – whether the Authority’s decision was affected by legal unreasonableness – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: FPT17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 860 of 2020

Judgment of: Judge Street

Hearing date: 6 October 2020

Date of Last Submission: 6 October 2020

Delivered at: Sydney

Delivered on: 6 October 2020

REPRESENTATION

Counsel for the Applicant: Mr L Karp via Microsoft Teams

Solicitors for the Applicant: Weighbridge Lawyers

Counsel for the First Respondent: Mr G Johnson via Microsoft Teams

Solicitors for the First Respondent: HWL Ebsworth

ORDERS

1. Leave is granted to the applicant to rely upon the further amended application annexed to the applicant’s submissions filed on 23 September 2020 and directs that the applicant formally file and serve that further amended application on or before 5:00pm on 9 October 2020.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

Date of order: 6 October 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 860 of 2020

FPT17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 16 March 2020 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil male of a young age and born in the Northern Province. In October 2012, the applicant arrived in Australia, at which time the applicant was not yet an adult.

3. The applicant claimed to fear harm, in summary, because of questioning and treatment of his father and that he feared the same would happen to him, his Tamil ethnicity and his illegal departure from Sri Lanka.

4. On 7 June 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection Visa.

5. On 18 July 2016, a differently constituted Authority affirmed the Delegate’s decision. The Federal Circuit Court of Australia dismissed the applicant’s application and on appeal the Federal Court of Australia by consent remitted the matter to the Authority for reconsideration.

6. On 19 February 2020, the Authority wrote to the applicant identifying that the matter had been remitted for reconsideration and providing the applicant an opportunity to put on new information and submissions, which the applicant did.

7. The Authority, in its reasons, identified the background to the applicant’s Protection visa application.

8. The Authority identified having regard to the material given by the Secretary under s 473CB of the Act.

9. The Authority expressly considered the new information in accordance with the provisions of s 473DD of the Act.

10. The Authority summarised the applicant’s claims, including the new information in relation to fearing harm due to the recent government changes in November 2019 and the concern as to accessing mental health treatment and facing social stigma.

11. The Authority identified the relevant law, including in an attachment to the Authority’s reasons of applicable law incorporated by pagination.

12. The Authority referred to the applicant’s claims that his father is regularly assaulted by the army and, in particular, an alleged assault in June 2010 in which the applicant alleged his father’s leg was broken and another alleged assault where nails were put in his father’s fingernails. The Authority referred to the applicant’s claims that the applicant thought this treatment was because the authorities suspected his father was Liberation Tigers of Tamil Eelam (“LTTE”) as he was from a particular LTTE-controlled area.

13. The Authority referred to the applicant providing no details in respect of his father’s assaults and referred to the applicant repeating a standard, similar phrase that the army broke his father’s leg and threw him on the street. The Authority referred to the applicant claiming that he witnessed this particular incident and thus found the applicant’s lack of detail particularly concerning and referred to the applicant’s account not being spontaneous or descriptive. The Authority referred to the applicant not being able to provide information about how often or when the assaults occurred, other than in June 2010. The Authority also referred to the applicant being asked about his father’s arrest experience and what his father may have told him and that the applicant responded he did not ask his father because he did not want to worry him.

14. The Authority referred to it being difficult to believe that the applicant would not have more information about his father’s experiences or sought such information some years later, particularly given it formed a key part of his protection claims.

15. The Authority expressly referred to psychologists’ reports which were provided to the Authority. The Authority referred to assertions in those psychologists’ reports that all the applicant’s family were freedom fighters and that between 2002 and 2009 the applicant and his father were taken to an army camp and tortured on multiple occasions. The Authority referred to the applicant saying that he was terribly beaten when he was about 13 years old. The Authority referred to the applicant showing scalp and leg scars to the psychologists.

16. The Authority referred to the applicant’s claim that his father had disappeared eight or nine months previously and that he did not disclose that information previously because he believed that there was a high level agreement between the Sri Lankan and Australian governments to share information and that the disclosure would endanger his father’s safety. The Authority referred to the applicant saying that now that his father had disappeared he felt it easier for him to disclose the information. The Tribunal referred to the applicant’s claim that the Sri Lankan politicians were responsible for his father’s disappearance and troubles in Sri Lanka.

17. The Authority also referred to the 23 October 2019 report wherein the applicant was not able to recall the exact dates about the applicant and his father being taken to an army camp but that it occurred sometimes between 2009 and 2012  and that the applicant was severely beaten when he was 13 years old. The Authority also referred to the applicant’s claim that his father’s involvement in the LTTE resulted in an army investigation and the harassing of them regularly.

18. The Authority identified that the applicant had not made these claims previously and did not provide a statement of such claims to the Authority. The Authority also noted that the psychologists’ reports varied in relation to when the claimed events occurred from 2002 to 2009, 2002 to 2010 and 2009 to 2012. The Authority identified that there was little detail provided and no information about the applicant’s father’s disappearance. Accordingly, the Authority placed little weight on the reported claims.

19. The Authority referred to having considered the applicant’s explanations to the psychologists as to why he had not disclosed the information. The Authority expressly referred to the fact that the applicant had been legally represented and had been informed that the information that his claims would be confidential and not shared with the Sri Lankan authorities. The Authority referred to the applicant having stated in his application that he thought the assaults and harassment were because his father was suspected of LTTE involvement. The Authority referred to notes that suggest the applicant said his father was an activist against the government. The Authority observed that it does not make sense that the applicant would feel safer disclosing these claims once his father had disappeared.

20. The Authority expressly engaged with the assertion that the psychologist indicated the applicant felt this way because he considered his father was deceased. The Authority did not accept that the applicant’s father has disappeared or is deceased.

21. The Authority referred to the further proposition that if all the applicant’s family were freedom fighters and his father were LTTE, it is difficult to believe that the applicant’s father and family would return to the North and avoid detection from the authorities. The Authority found that this claim was not credible.

22. The Authority referred to certain documents that were provided on behalf of the applicant. The Authority did not accept that the documents were genuine or reliable and gave them no weight.

23. The Authority identified further concerns in relation to a typed undated letter from the applicant’s mother. The Authority was not satisfied that the documents or information contained is reliable and placed no weight on it.

24. The Authority did not accept that the applicant’s father was LTTE, a freedom fighter or activist, wanted by the authorities, continues to be in hiding, has disappeared or is deceased. The Authority referred to it being difficult to believe that the applicant’s father would not have been rounded up and sent to a rehabilitation camp at the end of the conflict. The Authority did not accept that even if the applicant’s family moved around when the applicant was at school that the authorities would not have found the applicant’s father if he were LTTE, suspected LTTE or wanted by the authorities. The Authority also took into account information that the applicant said his father was at home and continued to work, and that the applicant worked in an ice cream shop. The Authority found that if the applicant or his father were of interest to the authorities, they could easily have been found.

25. The Authority referred to the applicant’s claim that he himself was also physically assaulted, including being hit with boots and gun butts. The Authority identified that this had not been claimed in his Protection visa application. The Authority referred to the applicant’s explanation that he was not previously asked so he did not say so. The Authority, in that regard, referred to the arrival interview and the Authority pointed to the applicant being asked whether there was any other reason why he left Sri Lanka after referring to his father being beaten up and the applicant saying “I was scared because they always beat my father up they would also beat him up.” The Authority also referred to the fact that the applicant was specifically asked in his arrival interview if the police, security or intelligence organisations impacted on his daily life and that he said he was scared of the army and would cry because his father was always taken and beaten. The Authority also referred to the applicant being asked why he left Sri Lanka and that the applicant again spoke only of his father being assaulted. The Authority also referred to the applicant stating that he was scared they would also beat him up. The Authority also referred to the applicant being specifically asked if he had ever been arrested or detained and that the applicant said no, but said that his father had.

26. The Authority referred to being mindful of omissions from interviews but considered that it was very clear that the assaults advanced by the applicants were against his father and, having listened to the interview, considered that the applicant did not have difficulty in expressing himself or responding to questions.

27. The Authority referred to the applicant’s new assault claim in respect of which the applicant gave little detail and changed his account. The Authority referred to having listened to the interview and considered that the applicant was making up his limited account as he went. The Authority found that the applicant was evasive and not answering the question and making things up as he went.

28. The Authority referred to questions asked by the Delegate about when the applicant was allegedly physically harmed. The Authority expressly referred to having considered the documents provided in support and placing no weight upon them. The Authority then referred to having considered the description of the applicant’s assaults and scars as given to the psychologists in their reports. The Authority referred to the accounts varying about when it occurred and that there was very little detail. The Authority found it difficult to believe that the applicant would not have mentioned such scars to the Delegate at the protection interview, particularly given the Delegate expressed credibility concerns, and the many opportunities to elaborate and explain his lack of assault claims in his application. The Authority accepted that the applicant may have shown scars to the psychologists. The Authority, however, found it difficult to believe that the applicant would not have mentioned them to the Delegate if, in fact, they had any significance or related to his claims of harm.

29. The Authority also referred to the applicant having alleged that he had witnessed traumatic events such as bombings and deaths during the conflict and that he had not claimed this previously. The Authority identified that there was no detail provided about this.

30. The Authority referred to having assessed the applicant’s credibility, taking into account his mental health. The Authority accepted that the applicant had been diagnosed with symptoms of Post-Traumatic Stress Disorder (“PTSD”), anxiety and depression since April 2018. The Authority was not satisfied that the applicant’s mental health condition impacted upon him when he was interviewed.

31. The Authority found that the applicant had a meaningful and plenty of opportunity to provide evidence and explanations at the interview.

32. The Authority referred to another claim in relation to the applicant’s father’s friend being killed or that his cousin had disappeared in 2009. The Authority referred to a letter to a village leader, letter from the commission and a response to a divisional secretary and found the information and documents unreliable and placed little weight on those documents. The Authority referred to there having been no claims in relation to the applicant’s family or the claimed cousin’s family. The Authority was not satisfied that the applicant’s father’s friend was killed or that the applicant’s cousin had disappeared or been reported as a missing person.

33. The Authority accepted that the applicant’s father may have been questioned and assaulted when subjected to round-ups and the like during the conflict. The Authority did not accept, however, that the applicant’s father was taken to an army camp, that his leg was broken in 2010 or that he was left on the street. The Authority did not accept that the Sri Lankan authorities monitored or frequently visited or assaulted the applicant’s father as claimed. The Authority did not accept that the authorities tortured the applicant, his father, mother or any member of his family. The Authority considered the applicant embellished his claims in this regard.

34. The Authority referred to having listened to the applicant’s evidence and taking into account the applicant’s explanations and submissions and found that the applicant was not a credible witness.

35. The Authority did not accept that the applicant’s father was suspected LTTE, an activist or freedom fighter. The Authority did not accept that the whole family were freedom fighters. The Authority did not accept that the applicant’s father or mother was tortured or that they have been questioned at any time about the applicant and his whereabouts. The Authority did not accept that the applicant’s father was in hiding or disappeared or wanted or of adverse interest. The Authority did not accept that the applicant or his family would be considered enemy of the state or of adverse interest.

36. The Authority did not accept that the applicant was assaulted, tortured or questioned by the army or authorities or that he was of adverse interest. The Authority did not accept that the Sri Lankan authorities are looking for the applicant or that he is of adverse interest to the Sri Lankan authorities.

37. The Authority did not accept that the applicant faced any harm or adverse attention of the authorities and found that the applicant has not and will not have a profile of interest.

38. The Authority did not accept that the applicant faced a real chance of receiving hate speech on social media. The Authority did not accept that the applicant faced a real chance of discrimination on the basis of his ethnicity or as a young Tamil male from the North or formerly LTTE-controlled area.

39. The Authority referred to the applicant’s diagnosis with symptoms of PTSD, anxiety and depression since 2018 and having been receiving counselling from counsellors and medication. The Authority referred to the most recent report. The Authority did not accept that the applicant would not seek assistance if needed as he has done so in Australia. The Authority did not consider that having treatment from a different counsellor, if he returned to Sri Lanka, amounts to harm. The Authority did not accept that the applicant would not be able to access or afford assistance, services, support and medication. The Authority did not accept that the applicant needs private health care.

40. The Authority referred to country information indicating that the government provides free drugs and care to patients with mental health problems. The Authority did not accept that the applicant faces any harm or risk of not being able to access services in respect of aging or non-communicable diseases as the applicant is a young man and there is no evidence the applicant has any such illnesses. The Authority referred to other country information.

41. The Authority referred to the assertions of social stigma and was not satisfied that the applicant would only seek traditional healers or not seek appropriate assistance or treatment if needed. The Authority found that there was no evidence that the applicant would need hospitalisation or to attend a private hospital for an appointment. The Authority did not accept that the applicant would need private health care and referred to there being free universal health care. The Authority did not accept that the applicant faced a real chance of not being able to access or afford services or assistance needed.

42. The Authority found that any difficulties the applicant faced in relation to the health system would not be for one of the reasons specified in s 5J of the Act.

43. The Authority found that the applicant did not face a real chance of neglect from police or authorities by reason of being a mentally ill Tamil. The Authority did not accept that the applicant faced a real chance of detention for his mental illness or that he would require involuntary treatment as he has not had any such problems in the past and the reports do not indicate that he would require such treatment in the future either.

44. The Authority referred to social stigma but did not accept that such stigma would amount to serious harm. The Authority was not satisfied that the applicant faces real chance and denial of basic rights, be unable to subsist or faces a real chance of being detained or any other serious harm for mental health reasons.

1. The Authority did not accept that there is a real chance the applicant even, taking into account his mental health issues, as a young Tamil male from the North or LTTE-controlled area or being absent from Sri Lanka or because his father may have been harassed and assaulted during the conflict means the applicant was or will be of any adverse interest to the authorities or anyone upon return or that he faces a real chance of serious harm now or in the reasonably foreseeable future.

2. The Authority was not satisfied that the applicant would be unable to subsist or precluded from employment and accommodation. The Authority did not accept that the applicant faces economic hardship which threatens his capacity to subsist. The Authority was not satisfied that the applicant faces a real chance of social stigma, economic or other difficulties as a returnee and found that this did not amount to serious harm.

3. The Authority did not accept that the applicant faces a real chance of mistreatment on arrival in Sri Lanka or during the questioning process to establish his identity and any criminal history or as a result of the authorities checking with his home about his identity as the Authority did not accept that the applicant was or will be of adverse interest to the police, army, Criminal Investigation Division (“CID”), authorities or anyone else upon return to his home.

4. The Authority referred to the applicant’s illegal departure. The Authority was not satisfied that the questioning, arrest and being held in an airport holding cell, travel or possible costs for court appearances in the application of a penalty for illegal departure amount to systematic or discriminatory conduct as required by s 5J of the Act.

5. Taking into account the cumulative considerations of the applicant’s mental health, social stigma and the effect of possible detention for illegal departure and as a returnee, the Authority did not accept that the accumulation of those factors or harm amounts to serious harm. The Authority was not satisfied of the applicant’s well-founded fear of persecution.

6. The Authority found that the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant does not meet the criteria in s 36(2)(a) of the Act.

7. The Authority turned to consider the applicant’s claims in relation to complementary protection. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

8. Accordingly, the Authority affirmed the decision under review.

Grounds in the Amended Application

1. The grounds in the further amended application are as follows.

   1. The IAA failed to consider issues that clearly arose on the evidence and material before it, and on its own findings.

   Particulars

   (a) Whether the symptoms of Post-Traumatic Stress Disorder (PTSD) found to exist by the psychologists who examined the applicant were corroborative of his claims,

   (i) To have witnessed his father being assaulted and beaten, and/or,

   (ii) To have himself assaulted and beaten.

   2. The IAA fell into jurisdictional error in that it misconstrued and therefore failed to consider information given by the applicant.

   Particulars

   (a) The IAA (at CB 621 [55] stated that the record of applicant's arrival interview included a claim that, "I was scared because they always beat my father up and they would also beat him up".

   (b) That record (at CB 10) states that, "I was scared because they always beat my father up and they would also beat me up".

   4. The IAA's decision was affected by legal unreasonableness.

   Particulars

   (a) It was unreasonable for the IAA to have relied (at [38] of its reasons) on a recording of the applicant's evidence to the delegate, which was given through an interpreter, in finding that his account was not spontaneous or descriptive.

   (b) It was unreasonable for the IAA to find, at [42] of its reasons, that it did not make sense that the applicant would feel safer disclosing his father's LTTE connections because he believed that his father was deceased in circumstances where he had told the psychologists who examined him that as the information could no longer harm his father he felt safe in disclosing it.

   (c) It was unreasonable for the IAA (at reasons [44]) to reject the veracity of the "Diagnosis Ticket" purporting to corroborate an assault on the applicant's father (CB 124) on the basis of the underlined heading of, "Assaulted by Unknown Persons", and by spelling mistakes made by the author.

   (d) It was unreasonable to the IAA to find that;

   (i) The applicant would not be able to access treatment and medication for his mental health condition in circumstances it had been reported that 400,000 people in Sri Lanka suffered serious mental illness and it had been further reported that services were insufficient to cope with widespread post conflict mental disorders. (at reasons [87], [891, [91])

   (ii) The applicant needed would not need private (mental) health care.

   (iii) The applicant would seek assistance for his mental health illness in Sri Lanka where there is a social stigma attached to mental illness because he had sought and obtained such assistance in Australia where there was no such stigma (at reasons [86], [91]-[92]).

2. The Court notes that Mr Karp of counsel on behalf of the applicant confirmed that ground 3 was not pressed.

Ground 1

1. In relation to ground 1, Mr Karp submitted that the Authority had failed to make a finding about why the applicant suffered from PTSD and that the applicant’s mental health and suffering of PTSD was a corroborative state of affairs and an issue upon which the Authority was required to make appropriate findings.

2. Mr Karp in that regard referred to the acceptance by the Authority of the applicant suffering from PTSD. Mr Karp submitted that the PTSD must have had a cause and submitted that the Authority did not consider what that cause would be and that such an issue clearly arose on the material before the Authority. Mr Karp submitted that the Authority made no express mention of the issue and had not considered the same and may have made other, different findings had it done so. Accordingly, Mr Karp submitted that the Authority had not completed its statutory task in the conduct of the review.

3. The Authority’s reasons are not to be read with a keen eye for error. Further, the reasons must be read as a whole. The Authority in its reasons in paragraph 62 was clearly alive to the significance of the link between the applicant’s claim to assaults and his scars and the claims he was advancing. The Authority observed that it was difficult to believe the applicant would not have mentioned them to the Delegate if, in fact, they had any significance or related to his claims of harm which clearly is a reference to the claims being advanced by the applicant through the psychologists reports that had been provided seeking to link the assaults and scars to his psychological state.

4. There was no failure by the Authority to consider an issue in respect of the applicant’s PTSD or mental state. It is apparent that the Authority took into account the applicant’s mental state. The Court does not accept that the Authority failed to consider the alleged link between the applicant’s scars and his mental state and the applicant’s claims. The Authority’s reasons as summarised above reflect a genuine intellectual engagement with the applicant’s claims and evidence. The Authority was not required to find that the applicant’s psychological state corroborated his claims. Nor was the Tribunal required to make a finding as to the cause of the PTSD or mental state. The submissions advancing the corroboration of the applicant’s claims based on the PTSD or mental state of the applicant reflect a disagreement with the adverse findings and are in reality an invitation to merits review.

5. The Court accepts the first respondent’s submission that the Authority was clearly cognisant of the psychologists’ reports, expressly referring to the reports and recording the applicant’s presentation of symptoms. The Court accepts that the Authority gave detailed reasons as to why it was not satisfied about the applicant’s claims of having witnessed and suffered torture and that the Authority considered the description of the applicant’s assaults and scars given to the psychologists and made the finding referred to that it was difficult to believe that the applicant would not have mentioned these things to the Delegate, which he did not, had they any significance to his claims.

6. The Authority also observed that the applicant’s reports indicated that he told his psychologists that he had witnessed traumatic events such as bombings and death during the conflict which he had not previously claimed. The Court accepts the first respondent’s submission that what the applicant reported to a psychologist about his past experience and having PTSD did not prove those past experiences had occurred.

7. On the Authority’s reasons, the Authority took into account what the applicant had told his psychologists about his past experiences and gave cogent reasons as to its concerns about the differences about what the applicant told the psychologists and what he had told the Delegate. That was a process reasonably permitted and consistent with the review exercise required under pt 7AA of the Act. There was no failure by the Authority to properly exercise the review jurisdiction as alleged in relation to ground 1.

8. The Court accepts the submission of the first respondent that the Authority was not further required to speculate about the causes of the applicant’s PTSD. The adverse findings made by the Authority in relation to the applicant’s claims were open for the reasons given by the Authority and dispositive of the whole of the applicant’s claims.

9. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Karp took the Court to the same passage as quoted in the Authority’s reasons from the arrival interview and contended a construction that this amounted to the applicant advancing a claim that he was in fact beaten up and that the Authority had misconstrued or misunderstood the evidence, giving rise to a jurisdictional error.

2. A fair reading of the passages in the arrival interview supports the applicant being scared that he would be beaten up and not that he was in fact beaten up. It is patent that the Authority took into account what the applicant had said in the arrival interview in making adverse findings that were open to the Authority as to what the applicant had failed to advance at the arrival interview. Those adverse findings were open for the reasons given by the Authority. A fair reading of the sentence in question supports no more than the applicant was identifying that he was scared and that the authorities would pick him up. That reading is also consistent with the context in which the applicant had earlier identified the round-ups and beating of his father. It is apparent that the Authority had listened to the interview and took into account the whole of the context as identified in the Authority’s reasons. Further it was a matter for the Tribunal to make findings on the material before it and for the reasons given the construction by the Authority was open, logical, rational and reasonable whereby even if there was an error it would be an error within the scope of the review required under pt 7AA of the Act and not a jurisdictional error.

3. No jurisdictional error as alleged in ground 2 is made out.

Ground 4

1. In relation to ground 4, Mr Karp submitted that the Authority’s exercise of the review jurisdiction was affected by legal unreasonableness in respect of four different matters. Each of those matters was, in fact, nothing more than an invitation to engage in merits review.

2. The first particular focused upon the Authority’s reasoning at paragraph 38 and, in particular, the observations that the applicant’s account was not spontaneous or descriptive. Mr Karp referred to the applicant giving evidence through an interpreter and contended that it was legally unreasonable to make such a finding.

3. It is apparent that the Authority listened to the interview from the Authority’s reasons, which must be read as a whole, and it was open to the Authority to make observations about the manner as well as the content of the applicant’s answers. The impression given to the Authority from having listened to the same was a matter upon which it was open to the Authority to make the adverse finding identified in paragraph 38 of its reasons, having also taken into account that the applicant had repeated a standard similar phrase when asked about his father’s assaults. This was not a finding based on demeanour. The adverse finding is not one to which no reasonable decision-maker could come.

4. Further, the Authority provided logical and rational reasons in support of the finding, having listened to the recording of the interview.

5. No jurisdictional error is made out by ground 4(a).

6. In relation to ground 4(b), Mr Karp submitted that the Authority’s finding in relation to paragraph 42 about it not making sense why the applicant would feel safer about disclosing his LTTE connections after he was deceased was a satisfactory explanation. This again was an invitation to merits review. It was open to the Authority to make the observation made in paragraph 42.

7. As to it not making sense that the applicant would feel safer disclosing his father’s involvement once his father had disappeared, it was an adverse finding by the Authority to which a reasonable decision-maker could come and, in circumstances where the applicant had been provided the information he was at the time of the interview as identified by the Authority, the rejection of the applicant’s explanation cannot be said to lack an evident and intelligible justification.

8. No jurisdictional error as alleged in ground 4(b) is made out.

9. In relation to ground 4(c), Mr Karp referred to the Authority’s adverse findings in paragraph 44 concerning a “diagnosis ticket” in respect of an alleged hospital admission between 6 June to 21 June 2010 for being assaulted by unknown persons. It was open to the Authority to identify that the document had a number of anomalies and to take into account the heading and double underlining and the odd description for a hospital document that is supposed to describe a person’s illness, injuries and treatment. It was open to the Authority to take into account, although the form was completed in English, that there are a number of obvious spelling mistakes and that where a date should be entered on the form, it says “S.O.S.” It was also open to the Authority to take into account what was stated in respect of “emotion, depressed and on psychiatric treatment.” It was further open to the Authority to take into account that the applicant had not advanced that his father had received psychiatric treatment.

10. The adverse reasoning by the Authority in paragraph 44 is not be read with a keen eye for error and it was open for the reasons given by the Authority. The adverse finding is not one in respect of which it could be said no reasonable decision-maker could come. Further, the adverse finding cannot be said to lack an evident and intelligible justification, nor was the finding based on trivial or insignificant matters.

11. No jurisdictional error is made out by ground 4(c).

12. In relation to ground 4(d), Mr Karp has submitted that the Authority in finding that the applicant would be able to access treatment and medication for his mental health was legally unreasonable in the context of the country information and that the finding that he would not need private mental health care and did not face serious or significant harm due to social stigma were legally unreasonable.

13. This again is an invitation to engage in merits review. The Court accepts the first respondent’s submissions that the Authority took into account country information and made findings in this regard that were open to it for the reasons given by the Authority.

14. In that regard, the Authority had expressly referred to country information indicating that the Sri Lanka government provided free drugs and care to patients with mental health problems at paragraph 87 of its reasons, as well as to information that Sri Lanka had made significant improvements and expanded its resources and facilities. It is also apparent that the Authority took into account an article that gave a positive view of the improvement of the mental health services and that the Sri Lanka had achieved quality mental health outcomes despite resource limitations.

15. Further, the Authority did not accept that the applicant could not seek mental health assistance as needed as he has done so in Australia.

16. There was no illogical or irrational finding by the Authority. There was no legal unreasonableness in the adverse findings by the Authority in respect of the applicant’s ability to access assistance in Sri Lanka or as to the applicant being placed in serious or significant harm by reason of social stigma.

17. No jurisdictional error as alleged in ground 4(d) is made out.

18. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 13 November 2020