Gew18 v Minister for Home Affairs

[2019] FCCA 2705

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEW18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2705

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: GEW18

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 637 of 2018

Judgment of: Judge Vasta

Hearing date: 24 July 2019

Date of Last Submission: 24 July 2019

Delivered at: Perth

Delivered on: 24 July 2019

REPRESENTATION

Applicant appearing on their own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Applicant’s oral application for an adjournment of these proceedings is refused.

2. That the Application filed 28 November 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

B.Orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 637 of 2018

GEW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 14 November 2018, the Immigration Assessment Authority “IAA” affirmed a decision not to grant the applicant, GEW18, a protection visa.  On 28 November 2018, the applicant filed an originating application in this Court asking this Court to review that decision.  From there, what occurred was that the matter was to be the subject of a first Court date in January this year.  As exhibit 1 shows, the Applicant and the Minister came to an agreement as to directions and the Registrar made those directions by consent.  Relevantly, the directions were that, at order 2:

   2. The applicant shall file and serve any amended application by 15 March 2019…

   5. By 4 pm 35 days prior to the hearing, the applicant shall file and serve written submissions in support of the application for review.

   7. The application be adjourned to 24 July 2019 at 10.15 am for final hearing. 

2. The Applicant did not file any amended application.  The Applicant did not file any written submissions.  The Applicant did turn up today at 10.15 and the Court had already arranged for an interpreter to be here for him.  From what I have been told, from Ms Tattersall, who was appearing from the Minister there really has been minimal contact between her office and the Applicant, and certainly there has not been, since the filing of these materials, any contact by any other person purporting to act on behalf of the Applicant in these proceedings. 

3. When the hearing started, I explained to the Applicant what the proceedings were about and how I would be going about the task that I had to perform, and I asked him to tell me whatever it was that he wanted to do in furtherance of his application.  He made some general statements and then he said that he did have a lawyer and he wanted more time because the lawyer was not around.  I asked why the lawyer was not here and why he had not contacted the Court.  The Applicant told me that he was told by that lawyer that he would have to pay $5500 if he wanted the lawyer to appear today.  Then the Applicant made another, somewhat contradictory, statement that he was told at the last minute that the lawyer could not make it today – that he had something else.

4. All of this was not only a surprise to me but, it would seem, was a surprise to Ms Tattersall, who appeared for the Minister.  There was nothing in the records that she could tell the Court that showed that there had been anyone who had purported to appear for the Applicant.  She did tell me, though, that, at the time the Applicant was going through the SHEV process and the IAA process, he did have a lawyer from a particular firm. 

5. The Applicant then said that he was told by the lawyer to hand things up to the Court.  The first document that was handed up was a draft amended application.  In that application, the final orders had been amended and the grounds of application, that I will get to later, had also been amended.  Notably, though, the footer at the bottom of the page, where the legal representatives, if any, fill in their details, that footer had been filled in that it was filed on behalf of the Applicant and the address for service is the Applicant’s address that is on record, the email is the Applicant’s email, and the telephone is the Applicant’s telephone.  There is no details of any lawyer or any other person in this draft amended application.

6. The second item that was handed up was a memorandum from a Min Guo, who is a barrister who practises in Melbourne at 205 William Street, and he had given a memorandum to instructing solicitor Reuben Saul.  I have been informed by Ms Tattersall that this is the person who had been the solicitor acting in the previous matters.  The memorandum gives some opinion as to the likelihood of success on a particular ground that the barrister himself had formulated.  That ground is the ground that is contained in the draft amended application, the previous document that was handed up to me.  The last paragraph of this memorandum simply states: 

   Please let me know if you would like to discuss this advice. 

7. I also note that the date on the memorandum is 5 July 2019, some 19 days ago.  I asked the Applicant again why this had not been attended to.  He said that he had given all of the material to the lawyer, that he had put everything in the lawyer’s hands and now, to use the words from the interpreter, the lawyer has “left me in the lurch”. 

8. The Applicant has asked for the adjournment so that the lawyer could attend.  There is no guarantee, if the matter were adjourned, that the lawyer would be attending.  There has been no correspondence to the solicitors acting for the Minister from this particular lawyer.  The excuse as to why the lawyer is not here is either that he had something else on or that he wanted $5500, or maybe it is both.  The problem is that this matter has been set down now for well over six months.  There is no good reason or excuse that has been proffered as to why the matter is not ready to proceed.  There has been nothing given to me by the lawyer, or even the applicant himself, as to what steps had been done or what the situation was with the lawyer as to having the lawyer appear today.

9. This is not that there has been anything that has been of any surprise to the applicant.  As Exhibit 1 shows, it was he who signed the draft consent orders that were given to Registrar Trott, and he, in signing those, was acknowledging that it was a matter that this application would proceed on 24 July 2019 at 10.15 am.  In all of the circumstances, I am not convinced that the matter should be adjourned.  I gave that decision to the Applicant and told him that the matter would now proceed, and I said that I would give fuller reasons as to why the adjournment was refused, as I have now done.  I then said that I would proceed with the actual hearing. 

10. To understand this matter, there are a number of things that have to be seen as far as the background to the Applicant’s situation is concerned.  The Applicant is a Tamil man who is a citizen of Sri Lanka.  He arrived in this country as an irregular maritime arrival in October of 2012, having fled Sri Lanka.  In March of 2017, he lodged the application for a safe haven enterprise visa.  His claims were these.  He was working as a fisherman with his uncle in June 2006 when their boat was hit by a missile launched by the Sri Lankan Army.  He survived that and was rescued by the Liberation Tigers of Tamil Eelam (“the LTTE”).  The LTTE took the Applicant back to their territory, treated his injuries and sheltered him.

11. He claimed that the LTTE persuaded him that they were fighting for the Tamil cause and the Applicant agreed to complete LTTE basic military and weapons training.  He said that he was released from that camp on the intervention of a Catholic priest.  He went back to his village.  When he returned he was questioned by the authorities and kept for 10 days in detention.  He was asked about what happened in the LTTE area during the time that he was away, and the authorities who were questioning him beat him with a rifle butt.  He said that he was released and he was required to report every day.  His fishing pass was retained so that he could not work, and his father was also prevented from going fishing as often as the father used to.

12. He said that, for a while, if anything happened in the village, like a bomb blast or any fighting, officers from the criminal investigation department, the CID, would come to his house and question him.  He said in around October 2006 he was permitted to go fishing again as long as his father was not working on the same day.  He explained in his application that this was so that, if he, the Applicant, did not return, his father would be arrested.  The Applicant said that, when he was allowed to fishing again, he started spying for the LTTE providing information about the movements of the Sri Lankan Army and the number of troops posted to different points and other matters.

13. He said that, in February or March 2007, the LTTE attacked an SLA camp in the Applicant’s suburb of Jaffna.  He said that he provided information about the camp to the LTTE.  He said that, in March 2007, he was arrested by the CID.  He was detailed for 10 days; he was tortured and interrogated; he was then released.  He said that, after his release, he spent a month in bed at his aunt’s place recovering from the treatment that he had been given.  In the claim, he said that he was so incensed by his treatment he wanted to become more involved with the LTTE.  He continued assisting them from within the SLA-controlled area.  He passed messages; he smuggled banned goods like fuel, batteries and matches; he smuggled weapons and other military equipment during this time.  He continued to do this until about January 2009.

14. He said that his cousin, who was an LTTE combatant, was killed in 2009 and his other cousin, the brother of the combatant who was killed, was kidnapped in a white van from the Applicant’s home and that cousin has never been seen or heard from again.  He reported that another cousin’s husband was with the LTTE intelligence division and was killed by the CID in December 2011.  He said that he believed that this person was killed because of information of informants because, at that time, the Eelam People’s Democratic Party, (“the EPDP”), was active in providing information to the authorities about people in the applicant’s area who had supported the LTTE during the war. 

15. The Applicant said that he feared information about his involvement with the LTTE was going to be provided to the EPDP and so he went into hiding.  He said that, in January and February 2012, three people who were members or supporters of the LTTE were shot and that many others were killed during this period.  He feared that he would be next.  He then left Sri Lanka in October 2012. 

16. The IAA then went through in great detail the claims that the applicant had made.  The IAA was satisfied that the applicant had been the subject of a military strike in 2006 which sank his fishing boat, that he had been cared for by the LTTE, that he did do some basic training with the LTTE and that he then returned to his village.  The IAA was satisfied that the Applicant had been accosted by government officials and had been held for some 10 days and was beaten during that time, and that his fishing pass was revoked for three months, and that afterwards he was reporting daily to the SLA camp and that, if anything happened in the village, that the CID would come to his house and question him.

17. The IAA also considered it plausible that, when the Applicant was permitted to go fishing again, that he and his father were not permitted to work on the same day, but after that the IAA had serious questions as to the credibility of the applicant.  The IAA looked at the discrepancies that were in the application for the safe haven enterprise visa and what the Applicant actually said when he was interviewed by the delegate.  There were many examples of this, such as, in the written statement, the applicant claimed he was persuaded to undertake training when he was taken to the LTTE camp because of what the LTTE members told them about fighting for the Tamil people and what he had seen of the abuse of power by the authorities in harming Tamils;  but, in the SHEV interview, he said that he wanted to leave the LTTE camp because he was only 18 or 19 and had no interest in staying there, but that the LTTE insisted that he be trained. 

18. In the statement he gave, he said that he was furious at having been beaten so badly by the CID in March 2007 that he spent a month in bed recovering and it was this incident that pushed him to become more involved with the LTTE, but his parents would not allow him to join the LTTE;  however, in the interview, he said that one of his female relatives was raped in 2007 and that this is what made him feel that he had to join the LTTE to fight for his race.  There was no mention of the rape of a female relative in the SHEV statement or application. 

19. When the delegate asked about how the applicant went about joining the LTTE, the Applicant was unable to provide any details of the process and, when pressed, the IAA felt that the applicant was either nonresponsive or evasive.  The IAA noted that, after initially suggesting that he took the initiative to join the LTTE, the Applicant later contradicted that and said that, when he was working on the sea, the LTTE was in the area, they spotted him and asked him to join and support the LTTE cause.  In the interview, he insisted that he actually was a member of the LTTE; however, in the written statement, he said that he wanted to join the LTTE but his parents would not allow it.

20. In the interview, the detail that he gave about the claims that he was beaten by the CID in March 2007, which apparently was so traumatic that he was laid up in bed for a month afterwards, was brief and lacking in detail.  The IAA noted that they found it hard to believe that the applicant was speaking from personal experience.  The IAA noted that much of the information in the written statement was omitted when giving his verbal account of what happened.  The IAA found it very difficult to accept that the applicant would fail to mention in his interview about being beaten so badly by the CID that he spent a month in bed recovering, and that in the statement was the incident that motivated him to become more involved with the LTTE.  The IAA also looked at the issue of timing in some of the events that he had claimed and found that the timing was off, and those matters were canvassed quite thoroughly. 

21. At paragraph 23, the IAA said that the issues discussed go beyond minor discrepancies that could be attributed to problems of recall related to the passage of time, or issues related to interpretation, or cross-cultural communication issues, or the effects of trauma.  The IAA said:

    Overall, I do not consider the applicant’s account of his involvement with the LTTE and resulting interest by authorities credible or plausible and I am satisfied the applicant has embellished and fabricated parts of his evidence in order to bolster his claims for protection. 

22. The IAA said that they were not satisfied the Applicant was involved with the LTTE as a member or otherwise between the years 2006 and 2009, that he spied or smuggled for the LTTE, that he was detained and tortured by the CID in March 2007, that he spent a month in bed recovering, that he resumed working for the LTTE by smuggling goods until January 2009, that he was suspected in the killing of SLA officers, or any other claim.  The IAA formed the view that the Applicant fabricated those claims to enhance his profile and bolster his claims for protection. 

23. The IAA went through even more discrepancies between what the Applicant had said in the interview and what was written in his application.  This also included a claim that a CID officer, given the identification of the letter K, was in immigration detention with the Applicant and threatened that he would be killed if he returned to Sri Lanka.  The claim also was that that officer has been returned to Sri Lanka and has approached the Applicant’s parents.  The IAA did not put any credence in this claim at all. 

24. The IAA then went through activities that the Applicant had been involved in since he came to Australia, that he had been involved with the Australian Tamil Congress, that he had been part of celebrations for what is known as Tamil Hero Day, and that he is a member of the Tamil Eelam Cricket Club, and that club, even though it is a non-political club, the fact that it is called the “Tamil Eelam Cricket Club” and has a profile on social media, that the activities of the Applicant in either the cricket team or with the Australian Tamil Congress could easily be accessed by authorities in Sri Lanka, thereby allowing them to associate him with his former LTTE activities or even having a particular view of the Sri Lankan Government which would compromise him if he were to return to Sri Lanka.

25. The IAA also looked at his returning from Australia to Sri Lanka as a returning asylum seeker.  The IAA then went through quite a deal of country information.  The IAA noted the differences that had happened in Sri Lanka since the Applicant had left there, including the change of government, the increase in the rule of law, the diminishing of arbitrary detentions by the army, and the rise of Tamils in government circles.  The IAA, in looking at all of this country information, summarised at paragraph 44:

    44. The country information referred to above indicates that, although some monitoring still occurs, overall the monitoring and harassment of Tamils in the north has significantly decreased, there have been significant positive developments for Tamils politically, and the situation for Tamils generally has greatly improved even if, as most sources in the country agree, progress is slow.  Overall, it does not support a conclusion that Tamils or Tamil men from formerly LTTE-controlled areas face a real chance of serious harm at the hands of the Sri Lankan authorities.

26. The IAA then looked at the activities of the Applicant in Australia that I have previously spoken and came to the conclusion that the Sri Lankan Government would not be persecuting persons simply for their Tamil ethnicity; and, as for the suggestion that the Applicant’s activities with the club simply because of the name of the club would be a danger, the IAA considered that that claim was highly speculative and really had very little merit.  At paragraph 57, the IAA said:

    57. Assessing his claims overall and having regard to the country information before me, I am not satisfied the applicant faces a real chance of harm now or in the reasonably foreseeable future for a number of reasons. 

27. At 58 there were six reasons given and they were:

    Firstly, a number of reports note that residence in a former LTTE controlled area or being Tamil does not give rise to a need for protection. Secondly, while  I have accepted that he was have been detained and beaten once in 2006 for having spent time in LTTE territory, this appears to have been an isolated incident which occurred in the heightened security environment that prevailed during the war. Thirdly, after the incident in 2006 the applicant’s experiences of harassment, questioning and checking by authorities for three months were typically experienced by many Tamils during and after the war and I do not accept that it was indicative of any interest in the applicant personally. Fourthly, on my findings, the applicant had no further interactions with authorities from that time until he departed Sri Lanka in 2012. I have not accepted that he was  either involved with, or a member of, the LTTE or that he was detained or severely beaten by the CID in March 2007 on suspicion of passing information to the LTTE. Fifthly, I have not accepted that his cousins were members of the LTTE and while I accept that  another relative, N, was shot by the CID there is no evidence before me that the applicant or other members of the family were targeted by the authorities because of his role in the LTTE. Sixthly, as I do not accept that he was involved with the LTTE, I do not accept that the het was at risk of being identified to the EPDP as an LTTE person, that he went into hiding to avoid either the authorities or the EPDP, or that this fear prompted his decision to leave Sri Lanka. Finally, I am satisfied that his involvement in activities in Australia does not mean that he would be imputed by the Sri Lankan authorities as pro-separatist or a threat to the integrity of the unified Sri Lankan State, and I am satisfied he is not at risk of harm on the basis of his participation in Hero’s Day events and the Club. 

1. The IAA went through the country information as to what happens to persons who have been returned from a country as a failed asylum seeker.  The country information was, in summary, that the Applicant may face a fine for his leaving Australia without a proper passport.  At paragraph 67, the IAA said:

   67. In considering all of the above treatment that I accept the applicant is likely to experience- being detained and investigated for several hours at the airport, then potentially being detained for up to two days in an airport holding cell, and having to pay a fine and incur costs- I find that this treatment does not amount to serious harm.  Further, the evidence does not suggest that the law is selectively enforced or applied in a discriminatory manner.  I find that the investigation, prosecution and punishment of the applicant for illegal departure under the I & E Act would be the result of a general application and does not amount to persecution…

2. Therefore, the applicant was found by the IAA not to meet the requirements of the definition of “refugee”.  The IAA then went through the complementary protection assessment and again reiterated a lot of what had been said previously when they had been looking at the issue of the danger of his returning to Sri Lanka.  In the end, the IAA said this at paragraph 75:

   In assessing his claims, I am not satisfied that any of his claims, even when taken together, mean that there is a real risk of significant harm within the meaning of ss.36(2A) and 5(1) now or in the reasonably foreseeable future, if the applicant is returned to Sri Lanka. 

3. Given those conclusions, the IAA affirmed the delegate’s decision.

4. In the originating application, there were two grounds: 

   1. The assessor failed to properly consider all of my claims.

   2. The assessor didn’t give me a chance to comment on one aspect of my claims. 

5. Those grounds themselves are really bereft of any detail and do not show any jurisdictional error.  I asked the Applicant what it was that he wanted to say in furtherance of those grounds.  He said to me that the situation in the country is really bad and that he cannot go back to Sri Lanka.  He said that he told all of this to the IAA.  He said to them that his life was in danger and that he could not go back to Sri Lanka.  He later said to me that the IAA did not look into his case properly.  He said that he gave them every detail and every bit of information but he did not think that they looked into it properly.

6. He said that, even now, there are problems in Sri Lanka, that the army still comes to his house looking for him, that there is no security for him, that he was involved with the LTTE and the authorities have all his details and have photographs of him and so he cannot be safe.  He reiterated that he is in the Tamil Eelam cricket team and that, because the activities of that club have a social media presence through Facebook, that his security has been compromised and that the authorities will know of what he is doing here in Australia.  And he said that he had lost some vision in one of his eyes and he is getting treatment here in Australia, but he did not elaborate any further than that.

7. When one has a look, as I have done, at the decision of the IAA, it is clear that they did consider all of the claims and that they had thoroughly assessed them.  The Applicant’s real contention is that they could not have considered it properly because they did not find in his favour.  The illogicality of that submission is self-evident.  It is clear on the reasons of the IAA that they did consider all of the claims.  Unfortunately for the Applicant, they did not come to the conclusion that he liked. 

8. As for the second ground, that the assessor did not give him a chance to comment on one aspect, that seems to come from a request that had been made in the information that was sent to the IAA from the Applicant following the decision of the delegate for the Minister.  At paragraph 7 the IAA notes:

   On behalf of the applicant his representative requests the IAA utilise its discretion under s.473DC(3) of the Act to invite him to attend a hearing to address his claims for protection and adverse information (if any) that arises throughout the review process.  It is further submitted that if the IAA does not accept any of the delegate’s findings as true then this must be put to the applicant for comment or response. I am conducting a fast-track review under the Act.  The IAA does not have a duty to get, request or accept any new information where requested to do so by an applicant.  The IAA does have a discretion to obtain new information from an applicant, including at interview, although it can only consider such information in exceptional circumstances.  I have had regard to all of the material referred by the Department and the submissions made on behalf of the applicant. The applicant had legal assistance in lodging his application, was represented at his SHEV interview, and his representative provided a lengthy and detailed post-interview submission to the delegate addressing specific aspects of his claims.  The applicant’s representative has not submitted there is any particular information that the applicant was unable to provide to the delegate, and I am satisfied that the applicant has had ample opportunity to present his claims and supporting evidence.  Taking these factors into account and having regard to the terms of part 7AA of the Act, I have decided not to exercise my discretion to invite the applicant to an interview.   

9. On the reading of that, it seems that the IAA has looked at all of the proper principles and has exercised the discretion in the manner in which he was entitled to do.  There has been no jurisdictional error that has been established.  That would dispose of what the Applicant has said to me orally today and his grounds; however, it seems to me, in fairness, I should look at the amended ground that is in this draft amended application, simply as a matter of fairness, though I acknowledge that I have no particular need to do so because this is not properly before me; however, I have now looked at it and I feel that it is a matter that I should look at.  That ground reads as follows:  

   3. The IAA erred by failing to perform its statutory task of review in relation to the Applicant’s claim that there was a real risk of harm arising from any interaction the applicant may have with authorities upon return to the country. 

   Particulars

   a. The claim was set out in written submissions made by the applicant to the delegate and the IAA, citing evidence in support ( at CB135-141 [40] –[54] , [60]-[63] and CB252 [12] -[14]

   b. The IAA also found at [41] that the UK Home Office’s report of 2017 ‘indicate[d] that the risk of torture in Sri Lanka appears to exist whenever an individual comes into contact with law enforcement officers; it is a systemic issue with policing in Sri Lanka and exists regardless of ethnicity’.  This finding was consistent with the Applicant’s claim.

   c. However, in assessing the Applicant’s claim (at [61] to [67] and paragraph [74]), the IAA failed to engage in any process of weighing and preference in respect of any of the evidence put forward by the Applicant as well as its own finding at paragraph [41]. 

10. Paragraph 41 is a paragraph that is right in the middle of the IAA’s examination of the fact that the Applicant is a Tamil male from the north and his imputed political opinion generally.  I will read paragraphs 40, 41, 42 into the record to put this into its context.  Paragraph 40:

    40. In the submission to the delegate, the applicant’s representative referred to a number of ongoing human rights issues in Sri Lanka and cited the findings of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism as evidence that torture remains a risk for anyone with an association, however indirect, with the LTTE.

    41. In its February 2017 annual report, Amnesty International similarly referred to reports of Tamils suspected of links to the LTTE continuing to be detained under the PTA;  however, I have found that, after the 2006 incident, the applicant experienced no further interest from the authorities and I do not accept that he is at risk of being suspected of links to the LTTE.  DFAT assesses that, generally, Sri Lankans face a low risk of mistreatment that can amount to torture, irrespective of their religion, ethnicity, geographic location or any other identity.  The UK Home Office in 2017 reported a notable reduction in torture complaints and its report indicates that the risk of torture in Sri Lanka appears to exist whenever an individual comes into contact with law enforcement officers.  It is a systemic issue with policing in Sri Lanka and exists regardless of ethnicity.  Reported instances of arbitrary arrest and detention continue to fall. 

    42.The majority of sources consulted by the UK Home Office agree there have been improvements for Tamils since the change of government in 2015.  The major Tamil political party, the TMA, is supportive of the Sirisena Government and its commitment to human rights, although progress is very slow and, in the view of the TMA, too cautious. 

11. I should add that, at paragraph 44, the IAA say:

    44. The country information referred to above indicates that, although some monitoring still occurs, overall, the monitoring and harassment of Tamils in the north has significantly decreased, there have been positive developments for Tamils politically and the situation for Tamils generally has greatly improved.  Even if, as most sources in the country agree, progress is slow, overall, it does not support a conclusion that Tamils or Tamil men from formerly LTTE-controlled areas face a real chance of serious harm at the hands of the Sri Lankan authorities.

12. I had already referred to that paragraph in my reasons.  It seems to me that, when one looks at the sentence in context, that the report – this sentence:

    The report indicates that the risk of torture in Sri Lanka appears to exist whenever an individual comes into contact with law enforcement officers.  It is a systemic issue with policing in Sri Lanka and exists regardless of ethnicity –

13. This is not a finding of the IAA.  It is a statement of what is contained in the country information.  The finding of the IAA is the finding that is in paragraph 44, not that particular sentence.  The ground in the amended application is that, in considering the complementary protection criteria, the IAA did not engage with the argument that the Applicant had had that he would be at risk of harm arising from any interaction he would have with authorities. 

14. The problem with the way in which the ground is drafted is that it somehow assumes that, when the IAA considers the refugee criteria and then makes its findings, that it has to go through the whole process again when looking at the complementary protection criteria.  This is a wrong approach.  The reasons of the IAA must be looked at as a whole.  Simply because something is mentioned in the refugee assessment does not mean that it has not been looked at in regard to the complementary protection criteria.  As there is a great deal of crossover between the two criteria that exists, it is obvious that the criteria that does cross over will be considered by the IAA in the manner in which they have dealt with the refugee criteria or the complementary protection criteria. 

15. It is totally unnecessary for the IAA to simply repeat everything that it has previously said in the refugee criteria if it is also applicable to the complementary protection criteria.  I do note, though, in this case, that there is a degree of repetition there; but just because this part of what it was that the applicant had said was not specifically noted does not mean that there has not been that engagement.  Because that engagement is definitely able to be seen when one looks at what the IAA has done with the refugee criteria, it seems to me that it is also clear that that has occurred in relation to the complementary protection criteria.  As the IAA said in concluding, at paragraph 74:

    74. I accept that, on return to Sri Lanka, the applicant will be subject to a series of administrative processes and identified as an illegal departee.  He is likely to be investigated and may be detained for up to two days at the airport, fined for the offence of illegal departure, and may incur costs associated with the judicial process.  I am not satisfied, however, that this treatment amounts to significant harm.  I am not satisfied that the acts or omissions of the Sri Lankan authorities in this process are intended to cause pain or suffering or extreme humiliation.  Nor am I satisfied that it amounts to serious pain or suffering, pain or suffering that is cruel or inhuman in nature, or extreme humiliation. 

16. When one reads paragraphs 72, 73, 74, the conclusion in 75 is open.  I am of the view that there has been an engagement by the IAA in looking at what the Applicant’s claims are and what the country information is and balancing that out, even if, when under the heading of the complementary protection criteria, it has not been spelled out as explicitly as it had been in the assessment of the refugee criteria.  Therefore, even if this ground were a ground that is before me, it would not demonstrate any jurisdictional error. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 February 2019