AEW18 v Minister for Home Affairs

THE DECISION OF THE IAA 5 Notice of the decision of the delegate was dated 5 May 2017, although the decision of the delegate is not dated, a matter that gives rise to grounds 2 and 3 of the appeal. As noted above, following the decision, the Minister referred the matter to the IAA for review on 15 May 2017. 6 The decision of the IAA summarises the appellant's claims. In short, from 1985 to 1991 the appellant worked as a salesman in a textile shop in his home town. Between 1991 and 1995 he lived and worked in Saudi Arabia. In 1996 he opened a grocery store in his home town. In 2006 a close friend of his, who was also a customer, was kidnapped and shot dead because he was supplying goods to the LTTE, which he had bought from the appellant. 7 The IAA records the appellant's claims that he was abducted twice from his home by men in a white van, who were from the CID. The first time was in December 2006, the second in December 2011. Each time he was questioned about his connections with the LTTE, because of his friend who was murdered. The men threatened his life, tortured him, and demanded he reveal his connection to the LTTE, or they would charge him under the anti-terrorism laws. Each time he paid 5 lakhs to be released. He was told he would need to report to them whenever they demanded it, and they warned him not to leave the area or he would be killed. From December 2006 until August 2007 he did not return to live in his home town. He stayed in various places with family members. In 2007 he fled to Dubai and from there travelled to Iraq to work, where he stayed for 2 years before going to Afghanistan for 18 months. Twice he went back to Sri Lanka for short periods, once for 6 months while recovering from a workplace injury that caused him to lose his middle finger on his right hand. To avoid problems at the airport, on each occasion when he arrived and departed Sri Lanka his uncle paid money to people to assist his progress through the airport. After the second abduction in December 2011 he did not return home, but stayed in 3 different places until August 2012, when he came to Australia by boat. Twice in 2013 and once in 2015, men visited his wife in his home town in a white van and demanded money. They said that the appellant had connections with the LTTE. His wife paid them out of fear. 8 The appellant claimed that he is old enough to be viewed as having participated with the LTTE during the war and although he was not and never has been a member of the LTTE, he considers that he is profiled as such by the police and the members of his community. He fears that he will be murdered by vigilante Sinhalese, or will die when arrested or detained by the authorities. Further, he fears that his attempt to obtain asylum in Australia will be viewed as confirmation that he has been involved with the LTTE. He fears that he will be detained at the airport, assaulted and questioned upon his arrival in Sri Lanka. Furthermore, he claims that he is ill-equipped to deal with the difficulties he will face as a result of the mental health issues that he suffers arising from his experiences over 32 months on Nauru, and in particular from the physical abuse he suffered from the Nauruan police. 9 The IAA accepted a large portion of the appellant's claims. Relying on country information about the history of "white van" abductions and extra-judicial killings in Sri Lanka, from a UK Home Office report on Sri Lanka from March 2017, it accepted the appellant's claim that that his friend was abducted and murdered. It also accepted that in December 2006 the appellant was abducted by men in a white van and that he paid the sum of 5 lakhs to be released. It found that the abduction was sponsored by Sri Lankan authorities, either the CID or otherwise. It further accepted the explanation given in the appellant's written statement of interview that the main reason for the abduction was for money. In that context, the IAA was not satisfied that the reason for the abduction was for the purpose of gaining information about the LTTE and whether the appellant was involved in the LTTE. It considered that had the authorities been interested in the appellant for actual or perceived connections with the LTTE then he would not have been released. 10 The IAA also accepted that for about 8 months after the first abduction the appellant did not live at home and instead stayed with family members, out of fear of being abducted again and the threats to his life. However, it did not consider that he was of continuing interest to the authorities as a result of connections with the LTTE, because he had been released in return for payment. It considered that if the authorities had wanted to pursue him further, they would have known where to look, given police regulations allowing for household registration for every Tamil household. 11 The IAA also accepted that the appellant had travelled as stated, and that his uncle had paid at the airport to ensure that he could pass through. However, it considered at [19]: … After the first abduction by CID members, the applicant was able to depart the country lawfully using his passport on three occasions when he was working in Iraq and Afghanistan. However, there is nothing to say that had he not paid bribes he would have had problems. ...Taking into account country information about what has happened to LTTE cadres, members and supporters, particularly after the war ended in May 2009, I find the applicant did not have a profile with the Sri Lankan authorities as an LTTE member or supporter who posed a threat to national security, and who needed to be stopped from departing at an airport during the war, or stopped after the war and sent to a rehabilitation camp or charged with terrorist related offences, or detained and questioned on return at the airport, regardless of the payment of bribes to airport staff. 12 The IAA also accepted that in December 2011, a month after the appellant returned to Sri Lanka the third time, he was abducted from his home by 4 officers (whom he thought were from the CID) and that he was mistreated and then released the following morning. The IAA said at [20]: ... There is credible reporting on the practice of white van abductions and other abductions during this period in Sri Lanka's history, I accept the applicant was abducted a second time, and that the abduction was sponsored by Sri Lankan authorities... However, I am not satisfied that the applicant was abducted in 2011 because the abductors perceived him to be involved with the LTTE. Given the applicant had been working overseas, and was a business owner in Sri Lanka, he would have been considered a target for extortion. 13 The IAA accepted that the appellant lived with family and not in his own home for about 8 months after the second abduction, but noted that if the authorities had been interested in him for any real or perceived connections with the LTTE it would have been easy for them to locate him. It also accepted that the appellant's wife had been threatened and extorted 3 times, twice in 2013 and once in 2015, but was satisfied that this was because he and his wife were considered to have money, and not because of any perception of LTTE links. 14 Based on country information available to it, and the appellant's lack of an LTTE profile, the IAA found that there was a remote chance that the appellant would be subject to white van abductions, or other harm by the Sri Lankan authorities, persons sponsored by them or by vigilantes. It was not satisfied that the appellant would be harmed or extorted on the basis of his Tamil ethnicity. Based on country information as to the significant reduction in abductions for ransom and because his wife had not been subject of further demands since 2015, the IAA was not satisfied that there was a real chance he would be subjected to extortion, or to any other harm because of his Tamil ethnicity or perceived wealth. 15 The IAA found that there was not a real chance that the appellant would face harm because he had sought asylum in Australia. Nor did it accept that that any difficulties that the appellant might encounter as a result of his mental health amounted to persecution for the purposes of s 5J(1) of the Act. As a result, the IAA was not satisfied that the appellant met the requirements of s 36(2)(a) or s 36(2)(aa) of the Act.

THE APPEAL 25 In ground 1 the appellant contends that the primary judge failed to find that the decision of the IAA was affected by jurisdictional error in its finding at [32] that there was not a real chance that the appellant would again be subjected to extortion because of his Tamil ethnicity or for being perceived to be wealthy. He contends that the decision of the IAA was lacking an evident and intelligible justification and was unreasonable. In particulars appended to this ground, the appellant contends that having accepted that the appellant and his wife were subjected to white van abductions and extorted for money in 2006, 2011 and 2015, and also having accepted that upon his return to Sri Lanka the appellant may be perceived to be wealthy, the finding at [32] was not open from the DFAT country information upon which the IAA relied. The appellant also contends that the finding of the IAA that the appellant's wife has not been the subject of extortion since 2015 did not provide an intelligible justification for the impugned conclusion. 26 In [32] of its reasons the IAA found as follows: I have found the applicant was subject to extortion in December 2006 and December 2011. I consider that if returned to Sri Lanka, given the applicant's family continue to run three stores, and he still owns one of them, and he has been living and working in Australia (and worked in three other countries before coming to Australia), that the applicant may be perceived as wealthy. Based on DFAT reporting from January 2017 about the significant reduction in the incidents of abductions for ransom, and since 2015 the applicant's wife has not been subjected to further demands for money, I find there is not a real chance the applicant will again be subjected to extortion, or any other harm, because of his Tamil ethnicity, or for being perceived wealthy. 27 Central to the reasoning of the IAA is the conclusion that there has been a significant reduction in the incidents of abductions for ransom. Although [32] refers to DFAT reporting from January 2017, it is evident from other parts of the decision of the IAA that it has considered country information concerning improvements in the situation in Sri Lanka with respect to abductions pre-dating the 2017 report. It refers in [26] to a UK Home Office March 2017 report that indicates that since the new government came to office in 2015 white van abductions are now seldom reported. In [27] it refers to the results of a UK Home Office fact finding mission in Sri Lanka in July 2016 which reports the UN High Commissioner for Human Rights as commenting that such abductions are mostly a thing of the past. At [28] the IAA refers to the 2017 DFAT assessment, and notes that it reports that several credible sources in Sri Lanka have told DFAT that disappearances are no longer a common occurrence. 28 This ground first concerns an alleged failure on the part of the IAA actively to engage with the appellant's claims that he would face serious or significant harm should he return to Sri Lanka on the basis that he would again be subjected to extortion because of his Tamil ethnicity or for being perceived to be wealthy. 29 If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter 'proper, genuine and realistic consideration'; that is, the decision-maker must engage in an 'active intellectual process' directed at the matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ. 30 On must be careful not to permit a ground based on a failure to consider a claim to slide into a merits review of the decision of the IAA; Carrascalao at [35]. The principle does not require the decision maker to refer in the reasons to every piece of evidence and every contention made. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter, bearing in mind that one does not read the decision below with the eye attuned to the perception of error; Carrascalao at [45]. By contrast, the choice of and assessment of and weight to attribute to country information is a matter for the IAA; see, by analogy, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ). 31 In the present case, I perceive no absence of rational connection between the country information cited by the IAA (whether confined to the 2017 DFAT report or more broadly) and the finding that there was not a real chance that the appellant will again be subject to extortion. The IAA concluded at [32] that whilst the appellant was subject to extortion in 2006 and 2011, two factors contributed to its conclusion that there was no real chance that he would be again subjected to extortion upon his return to Sri Lanka. First, that the DFAT report in January 2017 indicated that there had been a significant reduction in the incidents of abductions for ransom. Secondly, that his wife had not been the subject of any further demands for money since 2015, despite the appellant's family continuing to run three stores. These factors were based on the evidence available to the IAA and provide an intelligible reason for the conclusion that it reached. 32 The second aspect of this ground concerns an allegation that the decision of the IAA was legally unreasonable. In Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) the Full Court (Allsop CJ, Griffiths and Wigney JJ) identified, some of the relevant principles concerning legal unreasonableness: 58 First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J). 59 Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ). 60 Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ). … 62 Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ). 63 Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42]. 64 Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ). 65 Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 33 Having regard to the principles set out, I do not consider that the reasoning expressed by the IAA in relation to the danger of further extortion to be arbitrary, capricious or irrational in the sense described. 34 In the result, in my view the decision of the primary judge in relation to this ground reflects no error. Ground 1 of the appeal must be dismissed. 35 In ground 2 the appellant contends that the primary judge erred in failing to find that the IAA had no authority to review the delegate's decision under s 473CC of the Act because the Minister had not validly referred the decision to the IAA under s 473CA of the Act. In the particulars appended to the ground, the appellant contends that s 473CA requires the Minister to refer a fast track reviewable decision to the IAA as soon as practicable after the decision is made. Section 67 requires the Minister to make a record of a decision to refuse to grant a visa and the record must state the day and time of its making. By s 67(3), the decision is taken to have been made on the day and at the time the record is made. By s 67(4) the Minister has no power to vary or revoke the decision after the day and time the record is made. By failing to state the date and time that the decision of the delegate was made, the decision of the delegate did not comply with s 67(2). The appellant contends that valid exercise of the Minister's obligations under s 473CA to refer a fast track reviewable decision was conditional upon the Minister's compliance with s 67. 36 The decision of the delegate was an exercise of power under s 65 of the Act to grant or refuse to grant a visa. Section 65 sets out the matters in respect of which the Minister must be satisfied before a decision to grant the visa may be made. Section 66 sets out how the Minister is to notify the applicant for the visa of the decision to grant or refuse the visa. Section 66(2)(a) requires that notification be given of any criterion that the applicant did not satisfy. Subsection 66(2)(c) includes a requirement that, except in circumstances specified in s 66(3), the Minister must give "written reasons... why the criterion was not satisfied...". The delegate's reasons complied with this sub-section. Sub-sections 66(2)(d) - (f) provide that the Minister must notify the applicant of a right to have the decision reviewed if the circumstances arising under sub-sections 66(2)(d) - (f) apply. In the present case the appellant was a "fast track applicant" within s 5(1) of the Act and accordingly the Minister was obliged by s 66(2)(e) of the Act to give notice that the decision had been referred for review under Part 7AA and that it was not subject to review under Part 5 or Part 7. The notification given by the delegate on 5 May 2017 complied with this requirement. 37 Section 67(1) provides that a decision to grant or refuse a visa are taken to be made "by the Minister causing a record to be made of the decision". Sub-section 67(2) requires that the record must state the day and time of its making. By sub-section 67(3) the decision is taken to have been made on the time and date that the "record" was made. Subsection 67(4) gives the evident reason for precision in maintaining the record, by providing that after that day and time the Minister has no power to vary or revoke the decision. 38 It may be noted that there is a material linguistic distinction between the s 66(2)(c) requirement for the provision of "written reasons" and the s 67(1) requirement that the Minister cause a "record" to be made of the decision. It is the day and the time of the making of the record of the decision, not the written reasons, that s 66(2) requires. The Minister submits that the word "record" is to be given its ordinary English meaning of "a written or otherwise permanently recorded account of a fact or event" (citing the Shorter Oxford English Dictionary, 6th ed, 2007), the fact or event here being the decision to grant or refuse a visa. This is to be contrasted with the "written reasons" identified in s 66. The Minister relies on an affidavit given by an assistant director of the Protection Assessment NSW Section, Humanitarian Program Operations Branch of the Department of Home Affairs, which was admitted into evidence before the primary judge. The affidavit explains that the practice of the Department is to create a permanent record in a database of the fact of a decision having been made under s 65 in relation to a visa application together with the time and day of the decision. The evidence indicates that such a record was created in respect of the decision of the delegate. 39 I accept that the ordinary meaning of the word "record" proposed by the Minister accords with the statutory scheme and suitably defines the subject matter of s 67(1). By creating in the database an entry specifying the day and time of the decision to refuse to grant the appellant's visa, the Minister satisfied his obligations under s 67(2). In this context, the absence of a date and time on the written reasons provided by the delegate is irrelevant. 40 Furthermore, the argument advanced by the appellant is that by reason of a failure to create a record of the decision the decision itself is invalid. Caution should be exercised in concluding that a referral of an administrative decision for review was invalid on the basis of a technical deficiency. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 the High Court considered the nature of a fast track reviewable decision under Part 7AA of the Act. It said at [39], [52] (per Gageler, Keane and Nettle JJ, emphasis added): 39 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a "landmark decision" in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a "decision" in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than "a decision in fact made, regardless of whether or not it is a legally effective decision". The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal "to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task": "[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review" and "technicality would be introduced at the outset". In the context of the Administrative Appeals Tribunal, that construction has not since been doubted. ... 52 The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority's review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective. 41 Section 473CA requires the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Section 473BB relevantly defines a fast track reviewable decision to be a fast track decision in relation to a fast track review applicant. The contention advanced by the appellant in the present case is based on the premise that by reason of the failure of the delegate to record the time and date on the written reasons accompanying the notification of the decision outcome, no "fast track reviewable decision" has been made, and accordingly the IAA had no power to make its decision. However, as the High Court records in Plaintiff M174, it is the decision made in fact to refuse to grant a protection visa to a fast track applicant that is the trigger for the operation of Part 7AA. That decision is made pursuant to s 65 of the Act. This trigger operates regardless of whether or not that decision is legally effective. In any event for the reasons stated in [37] - [39] above, no statutory omission of relevance arises insofar as there was no time or date set out on the written reasons of the delegate. Those reasons are not the "record of the decision" identified in s 67(2). If they were, the terms of s 67(5), which state that failure to comply with s 67(2) does not affect the validity of the decision would in any event deprive the appellant of success on this ground. 42 The views set out above are differently expressed to the reasons provided by the primary judge on the same subject. However, the result is the same. In my view ground 2 of the appeal must fail because the primary judge correctly held that the IAA had authority to review the delegate's decision. 43 In ground 3 the appellant contends that as a result of the Minister's failure to comply with s 67(2), the IAA could not determine whether any material provided to it by the Secretary under s 473CB(1)(c) was 'new information', and so was not in a position to consider the exercise of discretions within the parameters of s 473DD or s 473DE. For the reasons that I have set out in relation to ground 2, the asserted failure to comply with s 67(2) has not been established. Accordingly, ground 3 of the appeal must also be dismissed. 44 Ground 4 involves the contention by the appellant that the IAA erred in reasoning that because the human rights situation for Tamils had improved, there is not a real chance that the appellant would face harm from the Sri Lankan authorities for being a Tamil. In the particulars appended to this ground, the appellant first refers to country information that indicates that the conflict since the end of the civil war in 2012 has not ended for many Tamils and is still being perpetrated through unlawful abductions, detention and torture. Secondly, the particulars refer to other country information indicating that the potential for ongoing detention of even low-profile LTTE members or sympathisers remains. 45 This ground was not advanced before the primary judge, and leave is required before it may be considered on appeal. I commence my consideration of this ground with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the visa. As such, neither Court has the capacity to consider the factual merits of the IAA's decision to refuse to grant the application. The jurisdiction of the FCCA is limited to considering only whether the IAA's decision to refuse to grant the appellant the visa is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth). 46 Ground 4 amounts to little more than a disagreement on the part of the appellant with the reasoning and factual conclusions reached by the IAA. The choice and assessment of country information is a matter for the IAA; NAHI at [13]. Country information was before the IAA that entitled it to make the finding that it did. In such circumstances I do not consider that it is expedient in the interests of justice to grant leave to the appellant to advance this ground; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ) at [46]-[48]. 47 In ground 5 the appellant appears to contend that the IAA failed to consider the possibility that Tamils who suffered human rights violations had no actual or even perceived links with the LTTE and failed to foreclose reasonable speculation about the chance that human rights violations were carried out on Tamils who did not have real or perceived links to the LTTE. However, at [29] of its decision the IAA refers to country information that a person of Tamil ethnicity would not warrant international protection. It then goes on to consider whether a person who had a past connection with the LTTE (real or perceived) has an enhanced danger of persecution. This was part of the evaluative process that the IAA was entitled to conduct. Having regard to the nature of the present hearing, to which I have referred above, this ground is without foundation. It was not raised before the primary judge and I would not grant leave for it to be raised on appeal. 48 Ground 6 does not advance the position any further and may be set to one side.

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