DCU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 654

5 Interpretation

(1)

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality - a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

1. This is also reflected in s 5H(1) of the Act which provides that a person is a refugee if the person:

(a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

1. These provisions were helpfully explained by Judge Forbes in FLO17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 380 at [86]- [88]:

[86] In assessing the criteria for a protection visa, it is necessary to establish the person's 'country of reference' - usually the country in which they claim to fear harm. It is not a jurisdictional fact, but an error in determining this important issue can lead to jurisdictional error.

[87] For persons who have a nationality, the "receiving country" is the country of nationality. Whether a person is a national of a particular country is to be determined solely by reference to the law of the relevant country.

[88] For persons without a nationality, the receiving country is the country of their former habitual residence, with the added (but not unimportant) qualification that it does not matter whether return to that country would be possible.

1. It was not in dispute, and indeed the IAA made a finding in this respect, that the second applicant is stateless. It was also accepted as a matter of fact that the second applicant was born in Australia and had never resided anywhere other than this country.
2. In written submissions, the applicants submitted that the IAA was not permitted to deem Sri Lanka (or Vietnam, being the nationality of his mother) as the second applicant's receiving country in circumstances where he was neither a citizen of the country or had ever resided in the country, and that this was contrary to the clear definition set out in s 5 of the Act.
3. In oral submissions, counsel for the applicant submitted that the IAA was required to consider the speculative exercise of a stateless child returning with his father to Sri Lanka, which he had not visited in years, within the scope of the principle discussed in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE).
4. The relevant principle in NABE sets out the following (at [58]) (emphasis added):

[58] The review process is inquisitorial rather than adversarial. The tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 at [114] (Merkel J). There is authority for the proposition that the tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 ; [1998] FCA 1693; 160 ALR 24 at 56 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293-4 ; [1999] FCA 247; 58 ALD 30 at 35-7 ; [1999] FCA 247 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 ; [2001] FCA 263 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; 199 ALR 265; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal.

1. The applicants submitted that "such an unusual and remarkable situation" of the second applicant's statelessness warranted greater consideration from the IAA insofar as it might affect the second applicant as well as the first. Counsel for the applicants submitted at the hearing that the IAA had power under s 473DC of the Act to obtain new information if it considered it relevant to its task, which was necessary to allow the IAA to determine whether it was or was not satisfied of the real chance or risk of harm to the second applicant on return as a stateless child.
2. In written submissions, the Minister submitted that the IAA did not find the second applicant's receiving country was Sri Lanka or Vietnam. The Minister also submitted that the second applicant did not make any claims and was necessarily applying solely as a member of the family unit of his father (relying upon ss 36(2)(b) and (c) of the Act and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [19]-[25] (S134/2002)). In these circumstances, the Minister submitted that the definition and consideration of 'receiving country' in accordance with s 36(2)(aa) was only relevant to the first applicant.
3. The Court accepts the Minister's submissions in respect of the second applicant. As the second applicant is the son of the first applicant, and a member of his father's family unit (in accordance with s 36 of the Act), the IAA was not required to consider him against the refugee or the complementary protection criterion other than as a member of the first applicant's family. It has long been established that there is a distinction between those persons to whom Australia may owe protection obligations, and those who are members of the family unit of a person who may have made claims for protection (see S134/2002 at [19]).
4. Furthermore, the Court disagrees with the submission put forward by the applicants that the IAA found that the second applicant's receiving country was Sri Lanka. In the Court's view, a fair reading of the IAA's decision clearly establishes that it was aware that the 'receiving country' for the purposes of the statutory definition was Australia. However, the IAA also sought to assess the practical consequences of a refusal of the second applicant's application.
5. The critical passage in respect of the issues raised by these grounds commences at [28] of the IAA's reasons, which is set out below:

I am satisfied the second applicant is stateless. For the purposes of an assessment under s 36(2)(a) and (aa), if the applicant has no country of nationality, the relevant 'receiving country' is the country of his or her former habitual residence. In the present case, the second applicant was born and remains residing in Australia. He has not lived in any other country. To that end it is difficult to see what 'country of former habitual residence' he may have apart from Australia. Clearly that cannot have been intended to be a 'receiving country' in the relevant sense.

1. The IAA then went on to outline the approach it believed it should take (at [29]):

Nonetheless, having regards to the purposes of the refugee definition and complementary protection criterion, it is appropriate, sensible, practicable and fair for a consideration of any claims raised against the country of return of his father, the first applicant, which in this matter I have found to be Sri Lanka. There are no claims have [sic] been advanced on behalf of the second applicant in relation to Sri Lanka or Vietnam, and on the material before me I am not satisfied the second applicant has a well-founded fear of persecution.

1. In the Court's view, it was appropriate for the IAA to take the approach that it did and no fault could be attributed to the IAA in respect of this. The IAA was confronted with a factual situation where the second respondent was stateless and had only ever resided in Australia. The legislation required the IAA to assess the second applicant's claims against the relevant 'receiving country', but on the strict definition of that term, that could only be Australia. In the Court's view, that would be a needlessly rigid approach. It would have made no sense in either statutory purpose or logic to treat Australia as the 'receiving country'. The IAA expressly had regard to whether the second applicant had made any claims in their own right in respect of Sri Lanka. This made sense, because if the second applicant were to be returned with his father, it would be to Sri Lanka.
2. Counsel for the applicants accepted that the stated approach would have been acceptable had the IAA considered the second applicant's situation more fulsomely. Mr Krohn submitted that the finding that the second applicant was stateless required some engagement with what might be the situation of a stateless child returning with a father who had not been in Sri Lanka himself for many years. Mr Krohn accepted that no such claim had been advanced by the applicants in this respect but submitted that this was an unarticulated claim which squarely arose on the material in the sense identified in NABE at [57] of these reasons.
3. It is, of course, correct that the IAA was required to consider any claims which might have been articulated by an applicant, as well as those which were not expressly articulated but arose squarely on the materials before the IAA. However, it was not required to consider any claim which was not expressly articulated or which did not squarely and clearly arise from the materials.
4. The Minister is correct in stating that the second applicant made no claims in their own right. The sole basis for their application was that they were a member of the first applicant's family unit. Even accepting the applicant's claims in this respect, the IAA certainly considered aspects of the second applicant's situation. At [30], the IAA stated:

I have considered the claims in the submission, that being that there remains a real risk that the Sri Lankan Minister may refuse to use his discretion to register the second applicant's birth, rendering it possible that he could be refused Sri Lankan citizenship; and that there is an additional risk for the first applicant if he attempts to register the second applicant's birth as he will have to make his history known to the Sri Lankan authorities in order to do this. As discussed above, on the approach I have taken any consequences arising from the registration of the second applicant's birth, including the refusal and/or grant of Sri Lankan citizenship are inconsequential as there is no information before me to suggest any steps have been taken to register his birth with the Sri Lankan authorities. Furthermore, as discussed below, I have accepted that on the first applicant's return the Sri Lankan authorities will very likely become aware of the first applicant's past circumstances, however I have found that his or his family's past history will not give rise to any concerns and I am not satisfied that even if attempts were made to register the second applicant's birth with the Sri Lankan authorities that the first applicant faces a real chance of harm on this basis.

1. The first question to be decided is whether the IAA was required to consider whether the second applicant was at risk of harm in circumstances where no claims were made in that respect. The Minister's position in this respect is that the second applicant, having made no claims in their own right, could only meet the criteria as a member of the family unit of the first applicant.
2. Secondly, the Minister submitted that the second applicant could not meet the statutory definition of refugee in s 5H(1)(b) which expressly provides that a person is a refugee if the person "in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution is unable or unwilling to return to it". For similar reasons, the second applicant could not meet the criteria under s 5J(1)(b) as a person with a well-founded fear of persecution in their 'receiving country'. As canvassed, the receiving country for a stateless person is "the country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country". The Minister submitted that the second applicant's country of habitual residence is Australia.
3. The Minister contended that the IAA then engaged in what was described as an "over generous" approach in considering the possibility of whether or not the second applicant might have protection claims against Sri Lanka. In that sense, the IAA considered as new information the claim as to whether the second applicant may not be able to achieve Sri Lankan citizenship. The Minister submitted, however, that an inability to meet the criteria for Sri Lankan citizenship was not of itself a claim to fear persecution. Further, there was nothing in the evidence before the IAA to suggest that stateless children in Sri Lanka were at risk of serious harm or significant harm.
4. The Minister submitted that the IAA appropriately considered whether or not the first applicant may suffer harm as a consequence of trying to register the second applicant for citizenship. However, the IAA dealt with that aspect of the claim.
5. The second applicant was born in Australia. He is not a citizen of Sri Lanka but may apply for citizenship by descent through his father. He may also be able to apply for Vietnamese citizenship through his mother. However, it is accepted by all that he is stateless. It is equally accepted that no claims were advanced in his own right. His entitlement to a protection visa rests entirely on the basis that he is a member of the family unit of his father.
6. The second applicant's situation was addressed by his representative in the following manner (CB 225) (without alteration):

We submit the Delegate's finding that the second applicant could apply for Sri Lankan citizenship does not finalise the task required by the Delegate to make appropriate findings in respect of whether he [sic] or not he would in fact be granted it.

As identified by the Delegate, the relevant law makes it discretionary for the Minister to "for good cause" allow his birth to be registered.

There remains a real risk that the Minister may refuse that discretion, rendering it possible that this child could be refused Sri Lankan citizenship.

There is also additional posed [sic] to the review applicant, in that he will have to make his history known to the authorities in order to attempt to register the birth of his child.

1. Accordingly, the only claims raised in respect of the second applicant were that the second applicant may be refused citizenship and that the first applicant's history may be made aware to the authorities in the process of making an application for citizenship. Clearly, both of these claims were addressed by the IAA.
2. The Minister is correct to assert that the second applicant, having made no claims in his own right, could only meet the criteria for a protection visa as a member of the family unit of his father. The Minister is also correct that the statutory definitions in respect of a receiving country did not require the IAA to consider return to Sri Lanka. The Minister's characterisation of the IAA's election to address in some part the second applicant's prospects on return as "over generous" perhaps overstates the matter. However, the IAA's own explanation that it was "appropriate, sensible, practicable and fair" is reasonable. The IAA was confronted with a stateless child who had only ever resided in Australia and who had applied for the visa in respect of his father's claims to fear harm if returned to Sri Lanka. It may not have been the 'receiving country' in terms of the legislative definition, however it was in terms of the practicality of the refusal of the second applicant's application as a member of his father's family unit. In the Court's view, the IAA was correct to consider the second applicant's situation in respect of Sri Lanka, at least to the extent that it did.
3. Having said that, the IAA was also correct to conclude that no claims had been raised by the second applicant either expressly or obliquely, save for a claim that he may have been refused citizenship because it was at the discretion of the Minister. As the Minister has observed, without more, that is not evidence of persecution. In any event, the IAA expressly considered this. There was no requirement for the IAA to delve any deeper than it did. Further, there was no other claim which could be said to have emerged clearly from the materials (in the sense identified in NABE and similar authorities).
4. None of the grounds in respect of the second applicant are made out. There is no error in the way in which the IAA interpreted and applied the statutory question of the second applicant's receiving country. Furthermore, in circumstances where the second applicant had applied solely as the member of the first applicant's family unit and had not made any claims in his own right, there was no error in the IAA's consideration of the second applicant's circumstances.
5. No jurisdictional error arises from these grounds relating to the second applicant.

1. The applicants assert that there was no logically probative evidence for the IAA's finding that the first applicant did not face a real risk of persecution as he was not a high profile former LTTE member. The applicants assert that this finding was illogical and legally unreasonable.
2. In written submissions, the applicants submitted that a decision-maker falls into jurisdictional error if it makes findings that are illogical in the sense that no reasonable decision-maker could so have acted (citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680 at 683). The applicants then relied upon Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [68] (per Hayne, Kiefel and Bell JJ) to set out that:

[...] The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. [...]

1. Those principles are well-established and uncontroversial.
2. This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 as follows (at [80]-[83]):

[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).

[81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:

...[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[82] The correct approach, according to the High Court in SZMDS, is to enquire "whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it" (at [133]). At [135], the High Court stated:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...

[83] In Djokovic at [35], it was observed:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. Specifically, the applicants complained that the IAA did not refer clearly to the evidence for its finding that the first applicant did not face a real risk of persecution in Sri Lanka as he was not a 'high profile' former LTTE member. In this regard, while the applicants acknowledged that the IAA was not required to refer to every line of evidence it relied upon, the applicants argued that the IAA did not identify with sufficient clarity the particular Department of Foreign Affairs and Trade (DFAT), UK Home Office and US State Department reports it relied upon. Because of this, the applicants submitted, it could not be concluded that the material "obscurely mentioned" by the IAA was a logical basis for its findings.
2. The IAA set out the country information relied upon in its assessment of the first applicant's risk of harm on return as follows (at [53]-[56]):

[53] The DFAT, UK Home Office and US Department of State reports indicate that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009. Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the Sirisena government came to power in 2015. As a consequence of the improving situation, in 2017 and again most recently in 2018, DFAT assessed that Sri Lankans of all backgrounds generally have a low risk of experiencing official or societal discrimination, including in relation to access to education, employment or housing. Furthermore, the 2017 UK Home Office reports has assessed that it was its opinion that being a person of Tamil ethnicity would not in itself warrant international protection.

[54] I accept the first applicant is Tamil male, who has resided predominately in areas in the Eastern Province. Country information supports that a person being of Tamil ethnicity from the North or the East would not in itself warrant international protection.

[55] DFAT, UK Home Office, US Department of State indicate it is individuals who have or are perceived to have had a significant role in relation to post-conflict Tamil separatism or a renewal of hostilities within Sri Lanka who are now at risk of serious or significant harm on return. DFAT has assessed that those at highest risk of monitoring, arrest, detention or prosecution are 'high profile' former LTTE members, including the former leadership, and former members suspected of terrorist or serious criminal offences during the conflict or of providing weapons or explosives to the LTTE, and that close relatives of such people who remain wanted by the authorities may be monitored. People on a 'stop list', those with extant court orders or arrest warrants or orders to impound their passport, may be at risk of being detained; and people on a security services' 'watch list' for separatist or criminal activities, may be monitored. The US State Department has reported that although the use of force against civilians by government officials remained a problem it was increasingly rare, and that arbitrary arrest by police had decreased.

[56] I accept there is credible evidence of serious harm being perpetrated against certain Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities in pre and post-war Sri Lanka; however, I am not satisfied the first applicant's past or present circumstances would lead to a real chance of any adverse interest or consequences for the first applicant on return.

1. In respect of the first applicant's risk of harm on return to Sri Lanka, whilst the applicants submitted it is not necessary for the IAA to give a line-by-line reference to evidence, its obligation under s 473EA requires it to set out its decision and reasons, and then set out its findings on material questions of fact and to refer to the evidence upon which those findings were based. Counsel submitted, for example, that the IAA's finding at [53] that the situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict is not an observation which grapples with or considers the complexity of the relevant DFAT report.
2. Contrastingly, counsel for the Minister submitted that the DFAT report referred to is quoted verbatim at [53] and [55] of the IAA's reasons, for example, "Tamils have a substantial level of political influence". In light of this, the Minister submitted that the report does not determine whether people have a well-founded fear of persecution, leaving this up to the decision-maker, but is far from stating that every Tamil or every Tamil from the east has a well-founded fear of persecution.
3. The Court does not accept that there is any obscurity in relation to the country information relied upon by the IAA. To begin with, the delegate's decision expressly refers to the 2017 and 2018 DFAT reports, the 2017 UK Home Office Report and the 2018 US State Department report. In its lengthy consideration of new material, the IAA did not state that it used its powers to obtain additional country information. It can be readily accepted that the IAA's references to reports from DFAT, the UK Home Office and the US State Department are those reports cited in the delegate's decision. In any event, the IAA refers throughout the decision to the 2017 and 2018 assessments by DFAT and expressly refers to the 2017 UK Home Office report. The Court does not accept that it was required to identify the sources with any greater precision than it did.
4. The Court further accepts the Minister's submission that the country information, and particularly the 2018 DFAT Report, was probative of its finding that the first applicant did not have a well-founded fear of persecution simply because he was a Tamil. The Court has reviewed the 2018 DFAT Report and agrees that the IAA's findings based on that report were open to it. The 2018 DFAT Report documents an improving situation for Tamils in Sri Lanka and sets out which persons may have a profile that would attract the attention of the Sri Lankan authorities. In respect of the applicants' claim that the report is nuanced, that may be accepted. However, there is nothing in the report that is indicative that there is any error in the IAA's assessment that the report did not support a conclusion that a person with the applicant's profile would not be at risk of harm.
5. In any event, it is well established that the assessment of country information was a matter for the IAA (DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 613 at [61]; CPQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 191 at [24]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]- [14]). There was nothing irrational about the conclusions reached by the IAA in respect of the report. The fact that there may have been other aspects of the report which might have grounded a different but equally rational conclusion is simply indicative of the longstanding principle that reasonable minds may reach different conclusions without invoking unreasonableness.

1. Through ground eight, the applicants contend that the IAA failed to have regard to relevant material in the form of evidence relating to the attack in 2012, and secondly, in relation to the risk to the first applicant upon return. Ground nine essentially attacks the same findings but does so on the basis that those findings were unreasonable.
2. At this point, it is helpful to set out those findings relating to the 2012 attack and the paragraphs which surround them in order to provide context. The IAA sets out the following in respect of the 2012 attack (at [39]-[44]):

[39] In the protection visa interview, the first applicant claimed that on 26 August 2012, he was riding his push bike when eight or ten men came towards him on four motor bikes and pushed his bike. He fell to the ground. The men said to him that since his brother was a part of the TNA and had escaped, and because he had assisted the TNA in putting up posters at the election time and handing out leaflets they were now coming after him to warn him not to be a part of the TNA. Three of the men started to physically assault him. He fell down and cut his chin open. While on the ground the men kicked him. He began bleeding from his legs and arms as the ground was rough. The physical assault ended with a verbal threat by the men that they were constantly watching him. He didn't know who the men were but believed they had come from the Karuna Party which was a part of the LTTE but now connected with the Sri Lankan government.

[40] At the protection visa interview, the first applicant's evidence was generally consistent with the protection visa statement. He was asked what time of day had it been when this event had happened. He stated that he "thinks it happened in the evening". He was asked to describe what assistance his brother had given to the TNA. He stated that his brother was the head of the Fishing Cooperative Society and had lots of friends and would influence people to vote for the TNA and that is why they were not happy with him. His brother supported the TNA. He was asked was there any other ways his brother supported the TNA. He stated that he didn't know.

[41] I am prepared to accept that the first applicant was attacked and physically assaulted on 26 August 2012. I accept that he sought treatment for his injuries sustained in the attack. This aspect of the first applicant's evidence has been generally consistent throughout his interactions with the Department and his claimed injuries are corroborated by the details of the Diagnosis Ticket dated 27 August 2012 and signed by Dr PJ of the Teaching Hospital in Batticaloa.

[42] In contrast, however, I am not satisfied the first applicant's evidence about what he now claims are the reasons for the attack are reliable. Firstly, the first applicant has not claimed that prior to July 2012 either he or his family members had ever had an interest or been involved in supporting any political groups including the TNA. I find it difficult to accept that after residing for two years in Saudi Arabia, he would become involved in such political activities immediately on his return. Secondly, the first applicant's evidence in the protection visa statement and interview about his personal support to the TNA differed to the evidence he gave at his entry interview, in which he merely mentioned the support of his brother to the TNA. He made no mention of being harmed as a result. Thirdly, I have listened to the entry interview, and I note that the first applicant was specifically asked whether he had been involved in the same Tamil political party (TNA) that his brother had been, he stated no. Finally, unlike the detail he provided for other aspects of his claims which I have discussed above, the first applicant's evidence regarding the reasons he was physically assaulted at the protection visa interview were vague and unconvincing. His evidence that he believes and/or thinks that the men who attacked him were from the Karuna group was speculative at best.

[43] Separately, I have considered the extract from the Freedom House report referred to by the delegate, and while I accept that in the past there has been a credible reports of the involvement of thugs in electoral violence and intimidation in Sri Lanka, this information does not remove the concerns I have discussed above and evolution of these aspects of the first applicant's claims.

[44] I am not satisfied that the first applicant has been a truthful witness regarding the reasons for the attack in August 2012. I am not satisfied that the first applicant or his brother were supporters of or involved in assisting the TNA. Nor am I satisfied that the first applicant was attacked on this basis. Rather, based on the evidence before me, which I have not rejected, I am satisfied that the attack and physical assault on the first applicant was an opportunistic attack and the identities of the perpetrators were, as described by the first applicant in the protection visa application and the Diagnosis Ticket, unknown.

1. In drawing the Court's attention at the hearing to the first applicant's entry interview, the applicants submitted that, whilst there was not as much detail provided as there could have been, this was still a clear statement at the entry interview stage that he was harmed because of his brother. The particular information from the interview that the applicants sought to rely upon at the hearing is as follows (CB 25-29):

Q: Why did you leave your country of nationality (country of residence)?

A: ...so they threatened my brother not to support this party.

Q: Who?

A: I can't really be sure they may be a Karunas group.

...

Q: Did the police and security or intelligence organisations impact on your day to day life in your home country?

A: They harassed me and put me in jail for 14 days and they suspect me of being involved with the Tamil Tigers. Because of my brother they assaulted me once.

...

Q: Is there anything I have not asked you that you would like to say?

A: ...[a]fter he complained they threatened him again and he moved to Colombo and it is because of that they harassed me. I have my own boat and I supply food for fisher mens. One day I was trying to supply food and the armed group assaulted me. I got 6 stitches here and I was in the hospital for 4 days.

1. In its obligation to set out its decision and reasons, the applicants submitted that this was "one of the planks" on which the IAA founded its rejection of the political motivation of the attack (at [44]), namely, that it was "unsatisfied the attack and physical assault on the first applicant was an opportunistic attack". The applicants contended that this was an important and material error that, if the IAA had correctly considered and accepted it, would have affected its assessment of the first applicant's profile.
2. In oral submissions, the Minister submitted that the IAA's finding that the 2012 attack was opportunistic and the identities of the perpetrators were unknown was open to it. The Minister particularly emphasised in submissions that the applicant's account of what had or had not occurred had varied over time, so the IAA was not irrational in coming to a view that it accepted that the attack occurred but was not satisfied about the political motivations alleged.
3. The applicants claimed that the finding at [42] (set out above) indicates that the IAA failed to have regard to the following statement by the first applicant in his entry interview (CB 29):

I want to mention about my brother he is the leader of this fishery organization and he support the Tamil political party. So the rebel group they threatened my brother and they said if you keep doing that I will kill you - he was a bit scared so he put a complaint at the police station about the that. After he complained they threatened him again and he moved to Colombo and it is because of that they harassed me. I have my own boat and I supply food for fisher mens. One day I was trying to supply food and the armed group assaulted me. I got 6 stitches here and I was in the hospital for 4 days. It is because of that I left the country and this is all the problems I left the country...

1. The Minister contended that the applicants' argument in this respect could not stand as the first applicant did not say in his interview that he was assaulted as a result of his brother's involvement in the TNA.
2. The Court does not accept that the IAA failed to have regard to the first applicant's statements in respect of his brother's involvement with the TNA in the entry interview. It is plainly apparent that, as it stated, the IAA carefully listened to that interview. The Court accepts that it may be possible to construe the first applicant's somewhat vague assertion of harassment as equating to the claimed assault. However, that is far from clear, and the Court is satisfied that a fair reading of the IAA's reasoning reveals it conscientiously listened to the entry review, carefully considered it, and made findings consistent with a reasonable and rational understanding of the claims therein. Those findings were open on the evidence and the IAA's reasoning reflects that it actively engaged on an intellectual level with the evidence in reaching those findings.
3. The applicants also asserted that the IAA did not consider a question squarely arising on the material, namely, whether various factors, alone or in combination, may cause the first applicant to have a real risk of suffering relevant harm. Those factors were identified as follows:
   • He would be under investigation, interrogation or detention on return;
   • He may make an application to register the second applicant;
   • These factors may lead to the fresh discovery of the first applicant's past suspected involvement with the LTTE, and his and his brother's past support for the TNA as a party in opposition to the government; and
   • The longstanding history of abuse of human rights of persons being questioned or detained by the authorities.
4. The applicants argued that the IAA was obliged to consider whether these factors may lead to a real chance of the first applicant suffering relevant harm during interrogation or detention, even if he were later determined not to be of adverse interest to the government.
5. The Minister drew the Court's attention to the IAA's reasons at [30] and [64] which expressly rejected a claim that the past activities of the applicant and his family members would give rise to any concerns. Those paragraphs are set out below:

[30] I have considered the claims in the submission, that being that there remains a real risk that the Sri Lankan Minister may refuse to use his discretion to register the second applicant's birth, rendering it possible that he could be refused Sri Lankan citizenship; and that there is an additional risk for the first applicant if he attempts to register the second applicant's birth as he will have to make his history known to the Sri Lankan authorities in order to do this. As discussed above, on the approach I have taken any consequences arising from the registration of the second applicant's birth, including the refusal and/or grant of Sri Lankan citizenship are inconsequential as there is no information before me to suggest any steps have been taken to register his birth with the Sri Lankan authorities. Furthermore, as discussed below, I have accepted that on the first applicant's return the Sri Lankan authorities will very likely become aware of the first applicant's past circumstances, however I have found that his or his family's past history will not give rise to any concerns and I am not satisfied that even if attempts were made to register the second applicant's birth with the Sri Lankan authorities that the first applicant faces a real chance of harm on this basis.

...

[64] I accept, as a person returning on a temporary travel document, the first applicant may be detained at the airport with other returnees for processing by the Sri Lankan authorities. I accept that during this process the authorities will very likely become aware of the first applicant's past circumstances. However, I am not satisfied his or his family's past history will give rise to any concerns. He was released in 2008, during the war, without further arrest or detention and was able to leave and re-enter Sri Lanka without apparent difficulty during periods of greater tension. There is no evidence before me that he has outstanding court orders, arrest warrants or a criminal or terrorist background. There is also no independent information before me to suggest that absent any other concerns, individuals who return to Sri Lanka after having spent period of time living abroad including in a western country such as Australia are imputed with any type of profile and I do not accept that he will be on this basis. I am satisfied that it would be quickly determined that the first applicant has no adverse profile or other profile of interest.

1. The Court agrees with the Minister's submissions in this respect. It is clear that the IAA did have regard to the factors identified by the applicant and properly engaged with them.
2. No jurisdictional error arises from these grounds relating to the first applicant.

1. The further amended application for judicial review, supporting affidavit, written and additional oral submissions presented by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the IAA.
2. Accordingly, the application is dismissed.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.