Fvo18 v Minister for Home Affairs

[2019] FCCA 978

FEDERAL CIRCUIT COURT OF AUSTRALIA

FVO18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 978

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Safe Haven Enterprise visa – whether the Authority failed to consider or exercise its power to invite the applicant to comment – whether the Authority failed to consider or exercise its power to invite the applicant to attend a hearing – whether the Authority’s adverse findings were open on the material before it – whether the Authority’s adverse findings lack an evident and intelligible justification – whether the Authority failed to consider the societal discrimination the applicant may face on return – whether the Authority brought and independent and impartial mind to the determination of the matter on its merits – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: FVO18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3127 of 2018

Judgment of: Judge Street

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Sydney

Delivered on: 11 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 11 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3127 of 2018

FVO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the court’s jurisdiction under section 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 19 October 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise 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 Christian from the Eastern Province of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012.

3. The applicant claimed to fear harm from the Sri Lankan authorities and paramilitary groups aligned with them, and with the political Iniya Bharathi due to his Tamil ethnicity, and his real and imputed political opinion arising from his injuries and scarring, his support for the Tamil National Alliance (“TNA”) and his status as a returned asylum seeker. The applicant also fears he will not be able to access essential treatments to manage his health condition.

4. On 26 June 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 29 June 2018, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The fact sheet included reference to the need for any document not in English to be accompanied by an English translation from an accredited translator. The practice note in paragraph 27 identified in substance the same requirement.

6. The applicant did put on submissions dated 26 July 2018, which were expressly referred to in the Authority’s reasons. The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to the fact that the review material contains untranslated documents. The Authority noted that the applicant had in fact provided translations for other documents. The Authority gave consideration as to whether the Authority should invite the applicant to provide translations in the circumstances where the applicant was represented by the same firm that had provided the translations for other documents. The Authority decided not to do so and gave the untranslated documents no weight. The Authority’s reasons for giving no weight to the untranslated documents cannot be said to lack an evident and intelligible justification and was open to the Authority for the reasons given.

7. The Authority identified the receipt of the applicant’s submissions on 26 and 27 July 2018 and, insofar as they engaged with the delegate’s findings, had regard for the same.

8. The Authority identified that there was new information provided and in respect of the 2018 Emmerson Report was satisfied that there were exceptional circumstances to justify considering the same. The Authority referred to an article from The Guardian, published 23 July 2018 and identified the limited commentary that was provided and that the substance of the article was already before the Authority from other sources that the delegate considered.

9. The Authority’s reasoning in finding that there were not exceptional circumstances to justify considering this report clearly reflect taking into account the whole of s 473DD of the Act. The reference to the substance being already before the Authority was clearly a reference to s 473DD(b)(ii) of the Act. The Authority had earlier referred to s 473DD(b)(i) of the Act in the earlier reasons of the Authority and had referred to exceptional circumstances. For these reasons there is no basis to infer that the Authority did not take into account the whole of the provision in considering whether the new information met the requirements of s 473DD of the Act.

10. The Authority summarised the applicant’s claims. The Authority accepted that the applicant participated in community development type of activities that were led by the TNA when he was in high school and that after returning from the UAE, the applicant became involved in the election campaign in 2010.

11. The Authority referred to two letters provided by the applicant in respect of his role within the TNA and the Authority identified inconsistencies with the information contained in the letters compared with the applicant’s evidence. It was in those circumstances the Authority expressed concerns about the authenticity of the letters and found them unpersuasive in their content. The Authority gave the letters little weight.

12. The Authority referred to having considered all the other evidence before the Authority, including the applicant’s written and oral evidence, the applicant’s post-interview submissions and other arguments and was satisfied the applicant’s political activities with the TNA was limited to some assistance under an affiliated high school program and two months of low-level assistance on the election campaign in 2010. The Authority expressly concurred with the finding that had been made by the delegate that the applicant was a low profile supporter of the TNA.

13. The Authority referred to the applicant’s submissions and evidence about his role and activities with the Youth Services Council. The Authority found the applicant’s activities were limited to doing training programs, which involved no political activism and that his engagement was limited to his high school years or 2001 at the latest and did not accept that this bestowed on the applicant any political profile.

14. The Authority did accept that the applicant was involved on the election day in April 2010 and witnessed an attack by TNA members of an armed group affiliated with the Iniya Bharathi and that the applicant was subsequently chased by them, detained, interrogated and tortured for three days. The Authority took into account country information in that regard in accepting the applicant’s claims and in accepting that the group was engaged in the types of activities the applicant had described. The Authority however was not satisfied the applicant himself faced further problems with the group following his release in April 2010.

15. The Authority found the applicant’s evidence about being watched in the hospital to be vague and unconvincing. The Authority was not satisfied that the strangers his brother saw at the hospital were Iniya Bharathi members watching the applicant, or that they were members of any group intending to intimidate or otherwise harm the applicant.

16. The Authority referred to the applicant’s claims that whilst he was living in Colombo in 2010-2011 the Bharathi group came looking for him many times. The Authority did not accept that the Iniya Bharathi group maintained any interest in the applicant post the 2010 elections.

17. The Authority referred to the applicant’s claims in relation to being summoned to the Iniya Bharathi camp on 20 July 2012, where the applicant alleges he was blindfolded, tortured, interrogated and that he was held for three or four days. The Authority considered it implausible that the Iniya Bharathi group wanted to ensure that the applicant remained quiet given that they had openly attacked a TNA candidate at the polling booth election day. The Authority also considered it implausible that the Iniya Bharathi group were interested in having the applicant campaign for them.

18. The Authority referred to considering the additional details the applicant provided in his supplementary statement and accepting the medical findings in the x-ray report and that Assets counselled the applicant for anxiety, depression and Post-Traumatic Stress Disorder. The Authority referred to the content of the Assets letter, but noted that these details were collected from information that was told to the treating doctor and did not overcome the Authority’s concerns regarding the applicant’s credibility pertaining to his post-April 2010 claims.

19. The Authority referred to the applicant alleging that his family members are still suffering and that in 2016 his wife relocated to live with family and that he had been asked not to return.

20. The Authority did not find the applicant’s claims regarding the events after his release in April 2010 to be credible. The Authority did not accept that the Iniya Bharathi group or anyone had any adverse interest in the applicant following his release in April 2010. The Authority found it implausible that the Iniya Bharathi group were concerned about the applicant talking or that the applicant had any recognisable political profile or significant political experience such that the Iniya Bharathi group would actively pursue him to support a political campaign.

21. The Authority did not accept that the medical evidence and Assets reports or any other evidence substantiates that the applicant suffered harm in 2012 as claimed. The Authority did not accept the applicant’s wife was harassed and interrogated for this whereabouts. The Authority did not accept that anyone has been looking for the applicant since his departure. The Authority did not accept the applicant’s family has been harassed or that his wife was forced to relocate for her safety and to avoid harassment.

22. The Authority referred to the applicant’s reference to a new political party that Karuna and Iniya Bharathi have started. The Authority was not satisfied the applicant’s political profile in Sri Lanka would be known to the current members of any such party and, whilst the Authority accepted the applicant feels strongly about certain aspects of Sri Lankan politics, the Authority found there was no evidence that the applicant has been active in Australia or would seek to be politically active upon return. Taking into account the applicant’s previous engagement with the TNA, the Authority was not satisfied that the applicant’s profile was such that any political party would seek out the applicant now or in the reasonably foreseeable future.

23. The Authority referred to the applicant’s evidence concerning the kidnapping of one of his relatives and found it was an isolated incident and not indicative of the applicant coming to harm.

24. The Authority was satisfied the applicant’s faith does not form a basis for his fear of return and that he has not raised any claims to fear harm on the basis of his religion.

25. The Authority was not satisfied the applicant would be politically active with the TNA or any other political party upon return. The Authority was satisfied the applicant does not face a real chance of being harmed by Iniya Bharathi, or any other paramilitaries or political parties or the authorities on the basis of any political involvement and his interactions with the Iniya Bharathi group.

26. The Authority was satisfied the applicant has never been, and would not now or in the reasonably foreseeable future be, wanted by authorities on account of any Liberation Tigers of Tamil Eelam (“LTTE”) or separatist related matters or any other security or criminal matters. The Authority was satisfied the applicant would not be perceived as having an adverse profile of any kind upon return.

27. The Authority was satisfied the applicant does not face a real chance of harm on account of his Tamil race or any LTTE, separatist or anti-government imputations.

28. The Authority referred to the applicant’s health and the Assets letter and further reports in that regard. The Authority noted from the report that the applicant is doing well and no longer required counselling.

29. The Authority referred to country information and, whilst accepting the applicant may face difficulties in re-adjusting to life in Sri Lanka, was not satisfied that any difficulties he may face would be the result of systemic or discriminatory conduct on the part of the government. The Authority was not satisfied the applicant would experience official discrimination or any act, omission or treatment from authorities that would amount to a denial of services or that his capacity to subsist would otherwise be threatened. The Authority did not accept that persons with the mental health conditions or injuries, referring to the scarring that the applicant suffered, are targeted for violence or other harm in Sri Lanka at the official or societal levels.

30. Having regard to the circumstances, the Authority was not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Act.

31. The Authority accepted that the applicant left Sri Lanka lawfully, but that he is no longer in possession of his passport and therefore, would be returning on a temporary travel document and would be identifiable to the authorities as someone who is a failed returning asylum seeker.

32. The Authority referred to country information in relation to the investigative process that the applicant will be subjected to and accepted that the applicant may be interviewed, the authorities may contact the police in his home area and check criminal and court records.

33. The Authority was satisfied, notwithstanding the disclosure of the applicant’s personal history, that the applicant would not be subject to any investigation beyond that routinely experienced by returnees. The Authority was satisfied that the applicant does not appear on a stop or ‘watch’ list, is not wanted for criminal activities and is not of adverse security interest.

34. The Authority referred to the returnee process and took into account the applicant’s health and did not accept that the applicant would be treated differently or be denied necessary medical care during that period.

35. The Authority was not satisfied the applicant would face any real chance of suffering a threat to his life or liberty or other harm amounting to serious harm during returnee processing or for any reason connected to his status as a failed return asylum seeker from Australia or the west.

36. The Authority expressly referred to returnees in the community and discrimination issues and referred to country information in that regard. The Authority also referred to monitoring that may take place and was satisfied that it would not amount to serious harm.

37. The Authority found that Department of Foreign Affairs and Trade country information does not support that Tamils are subjected to discrimination or harassment from authorities, or members of the community at a level amounting to serious harm.

38. The Authority was satisfied the applicant would have support and that any stigmatisation/discrimination he may face will be low-level and will not affect his ability to access basic necessities and services or otherwise amount to serious harm.

39. The Authority expressly referred to taking into account the applicant’s profile, his previous injuries, trauma and his mental health and accepted that the applicant may face some difficulties and some discrimination on return, but found that that would not amount to persecution and the applicant did not face a real chance of persecution for any other reason claimed, singularly or cumulatively.

40. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

41. The Authority found there were 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 would suffer significant harm. The Authority found the applicant did not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision of the review.

Before this Court

1. These proceedings were commenced on 9 November 2018. On 3 December 2018, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did not put on any such documents.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table the applicant maintained that he was exposed to ongoing problems and that the Iniya Bharathi would still be coming after him. The Authority in its reasons considered the applicant’s alleged claimed fear of harm from Iniya Bharathi and/or the Sri Lankan authorities and made adverse findings that were open to the Authority and dispositive of the applicant’s claims for the reasons given by the Authority as summarised above. The applicant’s disagreement with the adverse finding does not identify any relevant error.

4. The applicant also submitted from the bar table that he was a strong supporter of the TNA. It is apparent that both the delegate and the Authority made findings that the applicant was a low-level supporter. Those findings were open to the Authority for the reasons given by the Authority. The applicant also maintained from the bar table that he would be an active supporter for the TNA if returned to Sri Lanka. That proposition is contrary to the adverse findings made by the Authority. The applicant’s assertion to the contrary does not identify any jurisdictional error by the Authority.

5. The applicant also referred to a newspaper article from 2010 that had not been translated, which the applicant initially suggested had been given to the delegate at the time of his Safe Haven Enterprise visa interview. The applicant had the original newspaper with him and a photocopy was handed up to the Court, which was identified as being untranslated and was marked MFI1. The untranslated document is not the subject of any evidence identifying that it was provided to the delegate or the Authority.

6. Further, for the reasons earlier given it was for the applicant to provide translations of any material upon which the applicant relied. Pursuant to s 5AAA of the Act it is for the applicant to provide sufficient evidence to establish the claims alleged. The Court is not satisfied that the untranslated document, marked MFI1, was in fact before the delegate and given that the document was not translated, the Court is not satisfied that the document from 2010 is in any event relevant. The Court does not accept that MFI1 was before the delegate or that if it was before the Authority or that it was a document to which the Authority was required to have regard, given that it was untranslated. In these circumstances the Court was not satisfied that MFI1 was relevant and the reference to the newspaper by the applicant does not give rise to any relevant error by the Authority.

1. The applicant’s contention that the newspaper article supported his claims was in substance an invitation to engage in merits review. This Court has not power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds for the application are as follows:

   Ground 1

   1. The Immigration Assessment Authority (hereinafter refers as 'IAA') acted unreasonably and denied the applicant procedural fairness in not exercising its power, and not considering whether to exercise its power under s 473DC (3) to invite the applicant to comment on the authenticity of the documents orally or in writing before it made its decision.

   Particulars

   a) The IAA failed to afford an opportunity to the applicant inviting him to comment on the authenticity of the documents submitted by the applicant. Relevantly to this decision, "the applicant argues that these letters are probative in establishing the applicant's significant political activity and profile, and the reasons why the Iniya Bharathi group were, and continue to be, particularly interested in him, placing him at risk" at [para 14].

   b) The IAA said" ... For these reasons I have concerns about the letters' authenticity and I find them unpersuasive in their content. I do not accept the arguments raised by the representative;  these letters have little or no probative value. I afford them little weight" at [para 14].

   c) Section 473DC(3) of the Migration Act 1958, has moreover been found to be a discretionary power. In DGZJ 6 v Minister for Immigration & Anor [2017] FCCA 623 at [105]. There had been no request from the applicant for the IAA to exercise the power in that case. However, in this case the applicant argues that these letters are probative in establishing the applicant's significant political activity and profile, and the reasons why the Iniya Bharathi group were, and continue to be, particularly interested in him, placing him at risk" at [para 14].

   d) The exercise of the power under section 473DC of the Migration Act 1958 can still be challenged on the ground of legal unreasonableness depending on the particular circumstances of the case. It was unreasonable for the IAA not to consider giving the applicant an effective opportunity to address the dispositive issue in this case.

   e) These circumstances constituted a constructive failure to exercise jurisdiction, as the IAA failed to afford the applicant an opportunity inviting him to comment on the authenticity of the documents submitted by the applicant before it made a decision.

   Ground 2

   2. The applicant contends that the failure to exercise the power, or to consider whether or not to exercise the power, in s473DC(3) to put the applicant on notice that, in contrast to the delegate's decision, his credibility concerning some of his claims was in issue, was unreasonable such that the IAA committed a jurisdictional error.

   Particulars

   a) In Minister v Li (2013) 249 CLR 332 at [29], [47] and [63] that the High Court stated: "When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably".

   b) In DZU16 v Minister [2017] FCCA 851 at [116]-[124] Judge Driver applied this principle to s473DC.

   c) The IAA reviewer J McLeod's disbelief of the applicant was based on fact that the applicant will not be harmed. There are aspects of the IAA reviewer J McLeod's reasoning which suggest to the disinterested observer an enthusiasm to reject the applicant's claims which may not be wholly warranted.

   Ground 3

   3. The IAA accepted some of the applicant's claims but not others. In the circumstances, in relation to the claims which the Authority did not accept, it was necessary for the Authority to take into account of the possibility that those events claimed by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA did not take into account this possibility. This was a jurisdictional error.

   Particulars

   a) The IAA said at [para 10] in its decision "I accept he is a Tamil catholic citizen of Sri

   Lanka and that this is his receiving country. I accept he grew up in A district in the Eastern Province ... .I am satisfied he has always considered A his home area and that this is the place to which he would return."

   b) The IAA also said "I accept the applicant started participating in community development type activities led by the TNA when he was in high school and that after returning from the UAE, he became actively involved in assisting with their election campaign in the two months leading up to the April 2010 general election. I accept from his evidence that he supported the campaign by displaying posters and going house to house with the candidate and around 20 other supporters to explain election policy and seek support for the TNA. At the SHEV interview the applicant explained why he supported the TNA and the particular candidate he campaigned for and I found his evidence to be consistent and convincing" at [para 12].

   c) However, the IAA failed to consider that the applicant has a strong political profile as a very actively involved member of the TNA and political campaigner and that the delegate incorrectly characterised the applicant as a low-level TNA supporter with limited or insignificant political experience." At [para 13].

   Ground 4

   4. The IAA failed to consider societal discrimination enunciated by the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emerson Report) superimposed by the DFAT report.

   Particulars

   a) The IAA said "There is anecdotal evidence that there had been regular visits and phone calls by the CID to failed asylum seekers as recently as 2017. DFAT assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities and this accords with reports of refugees and failed asylum seekers being socially stigmatised upon their return. DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation." at [para 55].

   b) The IAA despite the above findings said, "I am satisfied he will have support and that any stigmatisation/discrimination he may face will be low-level and will not affect his ability to access basic necessities and services or otherwise amount to serious harm." at [para 58].

   Ground 5

   5. The IAA said in its decision that "I accept that the applicant will be returning to Sri Lanka on temporary travel documents and would therefore be identifiable to authorities at the airport as a failed or returning asylum seeker from Australia." at [para 49]. Since the applicant departed illegally by boat, and as such, he is likely to be considered to have committed an offence under the I & E Act and is likely to be arrested and charged at the airport on return to Sri Lanka. The IAA said “Having regard to all the circumstances, I am not satisfied that the applicant for any reason face a real chance of suffering a threat to his life or liberty or other harm amounting to serious harm during returnee processing or for any reason connected to his status as a failed/returned asylum seeker from Australia/the west." at [para 54]. This being an erroneous application of the "real chance" test. The IAA ought to have considered the possibility that allegations of torture and mistreatment suffered by the returnees were true. Its failure to do so involved a misapprehension of the "real chance" test which was a jurisdictional error.

   Particulars

   a) The applicant would be remanded upon his return to Sri Lanka and would be exposed to the prison conditions and also due to his background, he would face a real risk of Cruel or Inhuman Treatment or Punishment (CITP) or Degrading Treatment or Punishment (DTP).

   b) While the UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankans- particularly Tamil-asylum seekers returned to Sri Lanka following the rejection of asylum claims, the DF AT report CIS29707: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka acknowledged that'[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.

   c) The IAA failed to adequately consider the available Country Information "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016 and did not consider the subsequent Country Information of the International Truth and Justice Project July 2017 "Unstopped: 2016/17 Torture in Sri Lanka July 2017 and the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018.

   Ground 6

   6. The applicant stated that the harm he would face if he were to return to Sri Lanka is due to the essential and significant reasons of his ethnicity as a young Tamil from former LTTE controlled area A in the Eastern part of Sri Lanka real or imputed political opinion as supporter of TNA and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].

   Ground 7

   7. The IAA erred in law in failing to respond to the appellant's claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand for up to two weeks.

   Particulars

   a) The accepted that departing Sri Lanka illegally is an offence, and that the applicant departed Sri Lanka illegally at [para 47].

   b) The IAA's findings in respect of the applicant's claim for a protection visa on the complementary protection ground ins 36(2)(aa) of the Migration Act 1958 (Cth) in contrast to the Refugees Convention ground ins 36(2)(a). The IAA did not deal with the applicant's case of torture whilst in remand detention under the complementary protection provisions.

   c) IAA said "I accept the applicant was detained and tortured in 2010 and I accept her has faced stresses in Australia relating to his visa application and his family's welfare in Sri Lanka without him. I accept from the Assets letter that he attended 11 counselling sessions from April 2013 to October 2014, treating him for symptoms consistent with depression, anxiety and PTSD .... "at [para 44].

   d) IAA also said "DFAT' s 2017 report which was before the delegate notes that mental health services are scarce and there is a general lack of institutional capacity to respond to mental health care needs. However the DF AT confirms that free health care is available and I am not satisfied that the applicant would be denied treatment or necessary medications, or that any difficulties he may face in obtaining the treatment and support that he needs would be as a result of any kind of discrimination" at [para 46].

   e) The applicant's mental health condition is manageable while he is in Australia. However, if he is required to return to Sri Lanka, he is likely to become distressed and his mental health condition is likely to deteriorate. This aspect was not dealt by the IAA in its decision while he was arrested and detained after arrival in Sri Lanka. Though the IAA said "I accept that the applicant suffers from mental health problems and he previously needed treatment for physical injuries" at [para 66].

   f) The IAA did not properly deal with his mental health claim during pre-trial remand in considering the applicant's claim for a protection visa on the complementary protection ground. Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs 144 FCR 1 at [55]-[63]. Therefore, the IAA committed a jurisdictional error.

   Ground 8

   8. The IAA alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the DFAT reports do not follow that the situation will continue to improve.

   Particulars:

   a) Where the political situation in a country is "fluid", political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating)-of the political situation in Hungary and Poland in recent years.

   b) The Guardian Australian Edition dated 27 October 2018 reports "Sri Lanka in political turmoil after prime minister Wickremasinghe sacked" President replaces PM with former strongman Mahinda Rajapaksa sparking constitutional crisis.

   c) The Guardian Australian Edition dated 27 October 2018 also said "The Sri Lankan Tamil parties extended support to Sirisena in the last presidential elections in 2015 to keep Rajapaksa away from power. By removing Wickremesinghe as prime minister, the moderate gains achieved in the last three years, by raising the trust of the Sri Lankan Tamil community on the State in implementing reconciliation measures in post-war Sri Lanka, may wither away. The JO and SLPP, led by Rajapksa, also consistently opposed any move towards reconciliation and political concessions to Tamil community."

   d) It is reported in the Colombo Telegraph November 16, 2016 that the Executive Director of the International Truth and Justice Project, Yasmin Sooka said, "It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka."

   e) Citing the report "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016", "Intelligence and security operatives continue to target Tamils for illegal detention in secret sites and inflict on them horrific torture and sexual violence with impunity, despite the change of government in January 2015," the Executive Director of the International Truth and Justice Project, Yasmin Sooka who also said:

   "Torture and abduction are so systematic and entrenched in the DNA of the security forces that even realignment of political parties in parliament and the new government under President Srisena are not able to stop these crimes. It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka."

   f) Kasun Ubayasiri, Lecturer, School of Humanities, Griffith University states, "Australian government has become the great defender of Sri Lanka's (and Australia's) insistence that the end of the civil war means an end to persecution ignores considerable anecdotal evidence of continued ethnic intimidation and a rise in Buddhist-nationalist violence.” It was reported in the article "War is over, but not Sri Lanka's climate of violence and threats", July 14, 2014 5.52am AEST The Conversation Academic rigour. Journalistic Flair.

   g) UN agency says "government torture and abductions continue in Sri Lanka" wrote by Saman Gunadasa, 19 December 2016 at World Socialist Web Site citing the comments by Juan E. Mendez, the United Nations' special rapporteur on Torture, "Contrary to the insistence of President Sirisena and Prime Minister Wickramasinghe that their administration represents "good governance", CAT (Convention Against Torture) makes it clear that seven years after the defeat of the separatist Liberation Tigers of Tamil Eelam (L TTE) in 2009, Colombo's police-state apparatus is still being used against the working class and oppressed mases. The report said that these anti-democratic methods were covered up by the judiciary and that "neither the Attorney General nor the judiciary exert sufficient supervision over the legality of the detention or the conduct of police investigations to prevent this practice.

   h) The applicant states that this process of the IAA was unreasonable. The IAA failed to explain why it preferred the DF AT reports in the review materials and the new DFAT report 24 January 2017 in light of the very serious allegations made in the country report "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016" and about the Sri Lankan Authorities and particularly the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018.

   i) Failure to consider this information by the IAA in its review is a jurisdictional error.

Ground 1

1. Ground 1 concerns the Authority’s adverse finding in respect of the supporting letters provided by the applicant is respect of his TNA involvement. The applicant complains that the Authority failed to consider or exercise its power under s 473DC(3) of the Act to invite the applicant to comment on the authenticity of the documents. The Authority in its reasons identified that the content of the letters were inconsistent in a number of respects to the evidence of the applicant. It was in those circumstances that the Authority decided to give little weight to the letters as well as expressing concerns about the authenticity.

2. Given the inconsistencies between the documents and the applicant’s evidence, the absence of express reference to considering the power under s 473DC of the Act and the absence of exercising such a power cannot be said to lack an evident and intelligible justification. Taking into account the statutory scheme under Part 7AA of the Act and in particular, Division 3, including s 473DA and s 473DC(2) of the Act, together with the adverse finding that had been made by the delegate in relation to the want of profile by the applicant as a TNA supporter and the opportunity given to the applicant to put on new information and submissions to the Authority, the absence of express consideration and the absence of exercise of the power under s 473DC of the Act to comment on the authenticity of the letters provided as to his TNA support cannot be said to be legally unreasonable. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant seeks to take issue with the failure of the Authority to put to him the adverse findings in respect of the applicant’s claims post-April 2010. This is a case where the delegate had also made adverse findings in relation to the applicant’s post-April 2010 claims and the applicant was given an opportunity to put on new information and submissions as the result of a letter sent by the Authority in respect of the review. Taking into account the statutory provisions of Part 7AA of the Act, the absence of express consideration as to the exercise of the power under s 473DC of the Act, and the absence of the exercise of the power under s 473DC of the Act to explore credibility concerns with the applicant, cannot be said to lack an evident and intelligent justification.

2. The applicant was on notice from the delegate’s decision as to credibility concerns in respect of his claims concerning the post-April 2010 events as well as the other findings by the delegate rejecting the applicant’s claims and finding that he was of no interest to the Sri Lankan authorities for any reason when he left the country and not accepting that the Iniya Bharathi group were looking for the applicant following his departure from Sri Lanka, or that they harassed his family members, or caused his wife to move in with his parents. The delegate found that the members of the applicant’s family continued to live unharmed in his home region.

3. The Authority is required to evaluate for itself the material referred by the Secretary and the Authority was not required to inform the applicant of specific reservations about his case or provide him with an opportunity to respond. Further, it was open to the Authority to disagree with the delegate’s evaluation of the material without providing the applicant with an opportunity to respond. Accordingly, the absence of any express consideration of the exercise of the power under s 473DC(3) of the Act and the absence of the exercise of the power under s 473DC of the Act to put to the applicant credibility concerns cannot be said to be legally unreasonable. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the applicant takes issue with the Authority’s adverse findings in relation to him being a strong political supporter of the TNA in circumstances where the Authority had accepted other claims advanced by the applicant. There is no inconsistency in the Authority’s findings in that regard. It was open to the Authority to accept certain parts of the applicant’s claims and not others. There is no legal unreasonableness, irrationality or illogicality in the Authority’s reasons. The Authority found the applicant at least was a low-level supporter. The Authority was not required to accept the applicant’s claims and the adverse findings were open to the Authority for the reasons given by the Authority, which cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the applicant contended that the Authority had failed to consider the societal discrimination enunciated in the report of 23 July 2018. That is the report expressly referred to by the Authority in paragraph 7 and to which the Authority identified it was satisfied there were exceptional circumstances to justify considering the same. The Authority’s reasons expressly addressed societal discrimination in paragraphs 55 to 58, as well as clearly taking into account the issue of discrimination in paragraph 47. It was a matter for the Authority to what country information the Authority accepted. The Authority did not have to refer to all of the evidence before it in its reasons.

2. The applicant’s disagreement with the adverse findings by the Authority in relation to the stigmatisation and discrimination that he may face being low-level and not amounting to serious harm was an adverse finding that was open to the Authority. The Court does not accept that there was a failure to consider the report dated 23 July 2018 given the express reference by the Authority to the same in paragraph 7.

3. The Court does not accept it was necessary to make any further express reference to the report in the Authority’s reasons. Further, it is apparent that the Authority did, in fact, do so in paragraph 37 as well as in paragraph 55 and paragraph 40. There was no failure by the Authority to consider this integer of the applicant’s claims. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In ground 5 the applicant takes issue with the adverse finding that he would not face persecution under the real chance test as a failed returnee asylum seeker and the processes to which he would be subjected at the airport. It is apparent that the Authority addressed the applicant’s claim in this regard and made adverse findings that were open to the Authority. The applicant’s disagreement with the adverse findings does not identify any relevant error on the face of the Authority’s reasons.

2. The Authority correctly identified the relevant law. The Authority annexed the applicable law to its reasons and there is no basis to find that the Authority misapplied the real chance test in respect of the applicant’s claimed fears of persecution. The applicant’s reference to other country information does not identify any basis upon which the Court should find that there was any relevant error in the application or the understanding of the real chance test by the Authority. As earlier identified, it is a matter for the Authority what country information the Authority chose to accept. No jurisdictional error arises by reason of ground 5.

Ground 6

1. In ground 6 the applicant seeks to take issue with the adverse findings in respect of his ethnicity and being a young Tamil male from a former LTTE controlled area and as a supporter of the TNA. The Authority’s reasons expressly refer to the applicant’s age and where the applicant came from and the Authority found the applicant to be a low-level supporter of the TNA and expressly made adverse findings in respect of the applicant being imputed with a pro-LTTE opinion by reason of his Tamil race.

2. Ground 6 in substance reflects a disagreement with the adverse findings and does not identify any jurisdictional error. The adverse findings were open to the Authority for the reasons given by the Authority as summarised above. No jurisdictional error is made out by ground 6.

Ground 7

1. In relation to ground 7, the applicant takes issue with the adverse finding by the Authority in respect of the applicant facing significant harm as a result of processing at the airport. The applicant’s disagreement does not identify any relevant error by the Authority. The Authority clearly took into account the applicant’s mental health and there is no substance in the contention that the Authority failed to take into account a clearly expressed and articulated claim.

2. The applicant’s health was expressly referred to in paragraph 64. The Authority was also entitled to take into account the adverse findings that are made under the Refugees Convention. The Court accepts the first respondent’s submissions that the Authority made comprehensive findings about the applicant’s mental health and alleged associated risk of facing significant harm on his return which was rejected by the Authority. Those adverse findings were open to the Authority. No jurisdictional error is made out by ground 7.

Ground 8

1. In relation to ground 8, the applicant took issue with the Authority’s findings in respect of the country information concerning the treatment of Tamils. The applicant referred to particular country information and contended that the Authority’s findings in relation to the applicant’s claims were legally unreasonable.

2. The Authority’s reasons reflect a logical and rational analysis of the applicant’s claims, taking into account the country information that the Authority accepted. In these circumstances the Authority’s reasoning process in rejecting the applicant’s claims cannot be said to lack an evident and intelligible justification. It was not necessary for the Authority to expressly address why it preferred certain country information over other country information or in relation to the report dated 23 July 2018. There is no basis to find that the Authority failed to take into account the whole of the country information that was before the Authority. Ground 8 in substance invites the Court to engage in impermissible merits review. No jurisdictional error is made out by ground 8.

3. In the applicant’s affidavit the applicant contended that the decision maker had a mind committed to a conclusion. On the material before the Court, there is no basis to find that the Authority approached the review other than with an open mind reasonably capable of persuasion as to the merits. This is supported by the comprehensive reasoning by the Authority in respect of its review. The adverse findings by the Authority are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. The Court does not accept that the Authority approached the review with a pre-determined mind. No jurisdictional error arises by reason of the reference to the Authority’s state of mind in paragraph 3 of the affidavit.

4. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019