DUZ17 v Minister for Home Affairs [2019] FCA 1593 | Case summary

Ground 3 - The Authority acted unreasonably in not inviting the appellant to an interview 27 The Authority had the discretionary power under s 473DC of the Act to invite the appellant to an interview or otherwise to get further information concerning the sexual abuse claims. The appellant says that the Authority's failure to do so was unreasonable and therefore a jurisdictional error. In elaboration of this ground the appellant gave the following particulars: The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Appellant to an interview or otherwise to get new information from the Appellant about his claims, when the credibility of the Appellant was critical to the Authority's decision, there was a significant interval between the interview of the appellant by the Minister's delegate and the decision by the Authority, and some of the Appellant's evidence was rejected as "a recent invention" because of its view of "the late stage at which this information was introduced and the inconsistency of this information". 28 Section 473DC provides: Subdivision C - Additional information 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 29 Section 473DD provides: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 30 Relevantly to the present context I would note that in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, Gageler, Keane and Nettle JJ said (at [21]): There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review. (Citations omitted.) 31 Let me elaborate on the appellant's arguments which were efficiently put by his counsel, Mr Anthony Krohn. 32 The appellant submits that if there are issues or information which the Authority regards as necessary to be determined or considered on its review under Pt 7AA, but which were not dealt with by the delegate, then it is necessary for the Authority to remedy this situation by giving an invitation to the applicant for the visa to attend an interview. And failure to do so is legally unreasonable, and may also amount to a denial of procedural fairness. 33 The appellant also says that if procedural fairness has been denied by the delegate, it may be necessary for the Authority to remedy this situation, for example by giving an invitation to the applicant for the visa to attend an interview. And failure to do so may be legally unreasonable, as well as amounting to a denial of procedural fairness. 34 Now it may be accepted that the Authority did not exercise its power under s 473DC to invite the appellant to an interview or otherwise to get new information from the appellant about his sexual abuse claims. The appellant says that this was unreasonable when the credibility of the appellant was critical to the Authority's decision, there was a significant interval between the interview of the appellant by the delegate and the decision by the Authority, and some of the appellant's assertions were rejected by the Authority as a recent invention because of inter-alia the late stage at which the information was introduced and the lack of detail. 35 The appellant says that given that the credibility of the appellant was critical to the Authority's decision, including its assessment of a real chance of serious harm, together with the fact that in large part the Authority accepted the credibility of the appellant including his claims to have been detained, interrogated and mistreated on multiple occasions, it was not reasonable for the Authority not to have invited the appellant to give further information at an interview. 36 Further, the appellant submits that the timing, lack of detail or inconsistency which the Authority perceived in some of the appellant's claims related especially to the claims to have suffered sexual abuse and also to have been reporting daily to the police; in the way the argument unfolded before me yesterday I do not need to elaborate further on this latter aspect. But the appellant says that given the delicacy with which a claim of sexual abuse must reasonably be treated, as well as the notorious reluctance of victims of sexual abuse to reveal such abuse, this all meant that the Authority ought to have been cautious in not dismissing, without an interview, the claim to have suffered sexual abuse. In this context the appellant sought to draw some support from DPI17 v Minister for Home Affairs (2019) 366 ALR 665. 37 Further, although the primary judge concluded that there was nothing in the refusal of the Authority to accept some of the appellant's claims which required an oral interview by the Authority, it is said that her Honour was in error because the importance of the claim of sexual abuse, which was relevant both to the gravity of harm claimed to have been suffered and to be feared, and also to the general credibility of the appellant, required an interview. 38 In these circumstances, the appellant submitted that it was unreasonable of the Authority not to exercise its powers under ss 473DC(1) and (3) to invite the appellant to give new information at an interview. 39 Let me address these arguments. 40 First, I do not doubt that the powers under ss 473DC(1) and (3) must be exercised reasonably and that not to do so may amount to a jurisdictional error. And in this regard I would note what was said in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [106] to [110] per Beach, O'Callaghan and Anastassiou JJ: The standard of legal reasonableness applicable to the exercise of a statutory power takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general power is being exercised (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332). As Li indicates, the exercise of power must be "legal and regular, not arbitrary, vague and fanciful" (at [65] per Hayne, Kiefel and Bell JJ). A lack of legal reasonableness may be concluded from an exercise of power "which lacks an evident and intelligible justification" (at [76]). It may also be concluded from "an obviously disproportionate" response or exercise of power in the particular circumstances (at [74]). French CJ explained that it may be concluded from "a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut … [or exceeding] what, on any view, is necessary for the purpose it serves" (at [30]). Contrastingly, Gageler J applied the test of Wednesbury unreasonableness, but did not reason to the effect that a lack of an evident and intelligible justification or an obviously disproportionate exercise of power could not in an appropriate case be a manifestation of or establish Wednesbury unreasonableness. This Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 has also emphasised two points. First, it is not appropriate merely to take the scenario in Li and address factual similarities or differences (at [41] and [42] per Allsop CJ, Robertson and Mortimer JJ). In each context in which it is to be assessed, legal unreasonableness is invariably fact dependent (Singh at [42] and [48]). Whether a particular exercise of statutory power or its lack of exercise descends into legal unreasonableness necessitates a careful evaluation of the evidence and its context in the particular application for judicial review (at [42]). Second, if the decision maker has given reasons for the relevant exercise of power or lack of exercise under challenge, then it is to those reasons "which a supervising court should look in order to understand why the power was exercised as it was" (at [47]). More generally, the intelligible justification may be found within the reasons explicitly or implicitly for its exercise or its lack of exercise. Further, applying a standard of legal reasonableness does not merely involve or justify substituting this Court's view as to how a discretion should be exercised for that of the decision maker (Li at [66]). In summary, to demonstrate legal unreasonableness is a demanding standard and requires its demonstration against the statutory framework for making the decision to exercise or not exercise the relevant power. In the present context the scheme of Pt 7AA is such that save for limited circumstances, the Authority conducts its review on the papers (s 473DB(1)), and without accepting or requesting new information or interviewing the referred applicant. The Authority has power to invite the referred applicant to give new information (s 473DC(3)), but it does not have any duty to get, accept or request new information (s 473DC(2)). And the Authority will only consider new information if there are exceptional circumstances to justify doing so (s 473DD(a)) and providing of course that one of the limbs in s 473DD(b) is made out. A more detailed discussion of the structure and provisions of Pt 7AA is set out in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [1] and [15] to [35] per Gageler, Keane and Nettle JJ. It is unnecessary to further distil or summarise what is there set out. 41 Second, whilst it must be accepted that the power to get new information is to be exercised reasonably, what is reasonable is to be understood within the statutory context, including in this case that the review is in the ordinary course to be conducted on the papers. But in considering the statutory context I accept, as was put by Mr Krohn, that the context is not just Div 3 of Pt 7AA but also the broader statutory context of Pt 7AA and even more broadly the context of and the seriousness of the issues dealt with under, inter-alia, ss 36 and 65. 42 Third, the fact that the Authority here disbelieved some of the appellant's claims does not elevate the Authority's conduct in not inviting an oral interview with the appellant to the level of unreasonableness. Nor is any effluxion of time between the delegate's decision and the Authority's decision of any importance in and of itself. 43 Further, in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 in a case in which the Authority had made adverse credit findings against the appellant it was said (at [71] to [74] per Reeves, Robertson and Rangiah JJ): In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant's claims largely because of the delegate's finding that there was no CTS office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant's claims to have been a CTS informant. The delegate referred to "the significant credibility issues surrounding the applicant's claim to have been a 'secret agent' for the CTS". But the delegate also tested the plausibility of the appellant's claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. We would not however approach the resolution of the appeal by considering whether or not the delegate's decision indicated that all aspects of the appellant's credit were at issue in the Authority's review. That is to view the procedure through a natural justice lens. We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond. 44 Fourth, although one of the appellant's claims involved a claim of sexual assault, as the Minister's counsel, Mr Alexander Solomon-Bridge, correctly submitted, DPI17 does not greatly assist the appellant. 45 In DPI17, a concession had been made that the power to interview had not even been considered, and it was that failure to consider the exercise of the power itself that was held to be unreasonable. Now the notice of appeal in the case before me alleges that the Authority's error was in failing to exercise its power to interview the appellant, and not in failing to consider the exercise of the power. I must say though that when one considers the evidence before me it seems that the Authority never turned its mind to considering whether to exercise the s 473DC power such that the appellant's real case may be whether the Authority unreasonably failed to consider whether to exercise the s 473DC power. I will deal with both possibilities later. 46 Further, in DPI17 the delegate below had accepted the appellant's claims to torture and sexual assault and had done so, at least in substantial part, based on an assessment of the appellant's demeanour in interview. In that case, there was considerable disparity between the delegate's treatment of credibility and the Authority's treatment of credibility, where credibility turned on demeanour. So in that context it was unreasonable for the Authority not to have sought new information if it was going to take a course different from the delegate. Contrastingly, in the case before me the delegate made no positive findings about the claimed sexual abuse. To the contrary, he found that the appellant's embellishing of other parts of his claims "casts doubt on the treatment he experienced when he was questioned". There was not the same disparity between the delegate and the Authority on such matters, let alone one turning on demeanour. 47 Further, the sexual assault claims in DPI17 assumed prominence in the appellant's overall claims (as Mortimer J pointed out at [125(b)]). But in the case before me the sexual assault claims consisted of a sentence in one set of the appellant's representative's submissions to the delegate. And notably, the appellant's separate submissions to the Authority did not refer to a sexual assault claim at all. 48 Further, DPI17 does not stand for the proposition that whenever an allegation of sexual assault is made, the Authority is required to conduct an interview. An assessment of legal reasonableness will always turn on the facts and circumstances peculiar to each particular case. In my view there was nothing in the bare fact that a sexual assault allegation was made and disbelieved that renders the Authority's failure to conduct an interview unreasonable in the circumstances of this case. 49 Let me deal with some other problems for the appellant. 50 First, at no stage did the appellant or his representatives seek an oral interview before the Authority. The appellant's representatives were quite content merely to put before the Authority submissions querying the delegate's reasoning. But in this context no submissions were made whatsoever on the sexual assault question. 51 If the case were to have been put that it was unreasonable for the Authority not to have turned its mind to considering whether to exercise the s 473DC power, in my view no unreasonableness was shown. There was no trigger provided by the appellant's representatives' conduct. Moreover, the fact that the Authority was proposing to take a stronger view perhaps than the delegate on embellishment did not require the Authority to consider whether to exercise the s 473DC power let alone exercise it. As I say, the present case is not like DPI17 where there was a considerable disparity between the delegate and the Authority and which turned on questions of demeanour. 52 Second and relatedly, it is to be recalled that the delegate considered the appellant's statutory declaration and the submissions of AUM Lawyers on 5 September 2016 in the following terms: After the PV interview, on 5 September 2016, the applicant submitted a document in support of his claims which I have considered. In this submission, the applicant states that he was required to regularly report to the authorities for questioning and at this time he would be physically, mentally and sexually abused by members of the Sri Lankan authorities. … At the PV interview, the applicant stated that he was required to report to the authorities on a daily basis. The applicant did not put this particular claim forward in his statement of claims or at any time prior to the PV interview. I do not accept that the applicant would be of such great interest to the authorities that he would be required to report on a daily basis, yet not be subjected to any charges or rehabilitation. I consider the applicant claim that he was required to report daily is at odds with his claim that he was requested by the CID and the Army to come to their offices for questioning as they would not need to summon him if he was reporting daily. I consider the applicant has attempted to embellish the level of interest the authorities have in him and this also casts doubt on the treatment he experienced when he was questioned. … Summary I accept the following to be credible: • The applicant was questioned by the authorities about potential links to the LTTE at times in the years 2009 to 2012. However, I do not accept that: • The applicant was of significant interest to the authorities or was pursued for having ties to the LTTE or for any other reason. • The applicant was required to report to the authorities on a daily basis. On the basis of the above findings, I consider that the applicant has embellished the extent to which he was of interest to the authorities and the level of interaction he had with the authorities. 53 It is a fair reading of the delegate's decision that the delegate also considered, inter-alia, the sexual abuse claims and thought that there had been embellishment. 54 Third, it may be queried whether any of what the appellant suggests was "new information" given what had already been put before the delegate. But even accepting that new oral evidence by the appellant on the same topic could be "new information", there is nothing to show that the failure to consider exercising the s 473DC power or the failure to exercise it was unreasonable. 55 Fourth, there is difficulty for the appellant in any event under s 473DD. The exceptional circumstances limb of s 473DD(a) was most unlikely to be satisfied. But even if it could be, s 473DD(b) created difficulties. Clearly s 473DD(b)(i) could not be satisfied. Moreover s 473DD(b)(ii) was not without its difficulties. Let me elaborate on this last aspect a little concerning the phrase "credible personal information". It may be accepted that the phrase "not previously known" can refer to the Minister or his delegate even if the information is known to the visa applicant (Plaintiff M174 at [33] and [34]). 56 In terms of what is meant by "credible" in the phrase "credible personal information", the text and context of s 473DD(b)(ii) suggest to me that "credible" was intended to mean "reasonably able to be believed in", which is a meaning that happily sits with both its ordinary meaning and its Oxford English Dictionary definition (cf CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] per Bromberg J). I have looked at the extrinsic material on this question, but unsurprisingly it is of little assistance. In the original bill (Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)), cl 473DD did not have limb 473DD(b)(ii). Originally this was all dealt with under the exceptional circumstances limb. As the Explanatory Memorandum for the original Bill said (at [914] and [915]): Under this component of the test, the IAA would not be able to consider any new information in relation to making a fast track reviewable decision unless the Authority was satisfied that there are exceptional circumstances to justify considering the new information. Exceptional circumstances has not been defined and will provide a reviewer of the IAA with discretion to ascertain what he or she thinks are exceptional dependent on the characteristics of each fast track reviewable decision. It will be a matter for the IAA to develop guidelines to assist in the interpretation of this phrase, which has been deliberately left undefined as circumstances will differ from case to case. Examples of exceptional circumstances that may justify the consideration of new information may include, but are not limited to: • a material change in the referred applicant's circumstances which occurred after the Minister made the section 65 decision including a factual event, such as significant and rapidly deteriorating conditions emerging in the referred applicant's country of claimed protection, for example, a change in the political or security landscape; or • credible personal information that was not previously known has emerged which suggests a fast track review applicant will face a significant threat to their personal security, human rights or human dignity if returned to the country of claimed persecution. (Emphasis added.) 57 In the Senate an amendment was made to substitute for the original cl 473DD(b) a new (b) to read: (18) Govt (10) [Sheet GH118] Schedule 4, item 21, page 68 (lines 25 to 29), omit paragraph 473DD(b), substitute: (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 58 A Supplementary Explanatory Memorandum was then produced which said (at [27] to [29]): The purpose of paragraph 473DD(b) is to ensure that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless, in addition to paragraph 473DD(a), the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information was not, and could not have been, provided to the Minister before the Minister made the decision under section 65. The effect of new paragraph 473DD(b) is that it will provide that a new type of 'new information' that a referred applicant can present to the IAA can be credible personal information which was not previously known and had it been known, may have affected the consideration of the fast track review applicant's claims. This new provision will extend the types of 'new information' that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister. 59 Little illumination is shone on the meaning of "credible" by the extrinsic material other than that Parliament was concerned to stipulate limb 473DD(b)(ii) separately rather than to leave it blended with the exceptional circumstances condition stipulated in s 473DD(a). Of course, to leave standing the high conjunctive bar of s 473DD(a) may suggest less of a need to add any high bar to "credible" in limb 473DD(b)(ii). 60 But even if I was to assume the last aspect in favour of the appellant, or indeed that s 473DD was generally no bar, the appellant has a broader lack of materiality difficulty. 61 The Authority would in any event have concluded that there was no relevant real chance or risk given its findings of the appellant's exaggerations (with or without further detail on the sexual assault claims) taken together with more recent country information. The Authority had rejected the claim of the appellant being perceived to have been involved with the LTTE ([15] to [17] and [21]). The Authority accepted that he may have been of interest to be and was questioned and may have been mistreated at various times. But on each occasion he was not arrested, charged, imprisoned or sent to a rehabilitation centre. Further and importantly, taken with the more up to date country information, there was now no such relevant real chance or risk (see at [27], [30] and [43]). 62 In my view no jurisdictional error is shown and the primary judge has not been shown to be in error in her ultimate conclusion. This ground of appeal is not made out. 63 Before passing from this ground of appeal I would note one other matter for completeness. I had pondered whether the appellant's representatives' letter of 5 September 2016 in referring to sexual abuse was merely only putting a different characterisation on what the appellant had already said in his statutory declaration when he said that he was "forced to strip naked and abused verbally and physically" rather than something new, and whether or not this should have been clarified. But the parties put their cases on the hypothesis that something new was intended to be added. Therefore I will say nothing further on my alternative hypothesis. 64 Let me turn to the next ground of appeal.

Ground 4 - The Authority failed to apply or apply correctly the "real chance" test 65 In elaboration of this ground the appellant gave the following particulars: The Authority did not in fact apply the test whether there was a "real chance" the appellant may suffer serious or significant harm, but required a higher probability of harm, shown by its affirming the delegate's decision although it accepted that the Appellant "was harassed, questioned and possibly abused by the local security forces" and that "given the applicant's prior experience of detention and questioning by the authorities, he is concerned about future treatment by the CID and the army should he return to Sri Lanka." 66 The appellant points out that the Authority accepted that the appellant was on three or four occasions interrogated about the LTTE and assaulted, that the local authorities then, after his release from the camp and his return to his home area, questioned the appellant for information about the LTTE and possibly mistreated him, and his father was also questioned and mistreated. 67 But, as the appellant points out, the Authority concluded that the appellant was not targeted because of his profile except as a Tamil male generally ([21]), and that he was "not considered to hold a profile of LTTE involvement with the local authorities, or otherwise be of interest to them" ([22]). 68 The appellant submits that this conclusion demonstrates error in the application of the proper legal test for assessing a real chance of serious harm or a real risk of significant harm. 69 The appellant submits that as the Authority found that the appellant was repeatedly questioned about the LTTE, and may have been mistreated by the local authorities, even on multiple occasions after having previously been considered not to have been of interest, this demonstrates a level of adverse interest such as to demonstrate over time a real chance that the appellant may suffer serious or significant harm. It is said that the finding that the appellant was not "of any adverse interest to the authorities, including the army and the CID, in the months leading up to his departure from Sri Lanka" ([25]), despite his repeated "experience of detention and questioning" (and mistreatment, amounting to torture) ([27]), demonstrates an implicit error in the assessment of the boundaries of a real chance. 70 The appellant submits that the findings that the Authority was "not satisfied that [the appellant] faces a real chance of serious harm now or in the reasonably foreseeable future" ([43]) and was "satisfied there is no real risk of significant harm" ([49]) were infected by the Authority's narrow focus on whether the appellant had been of interest at particular points of time, rather than also on the whole picture of repeated interrogation and abuse and release. 71 I would reject this ground of appeal as well. 72 The appellant can point to no error in the manner in which the Authority articulated the test. Instead the appellant has relied upon inferences of error from the Authority's ultimate findings. In particular, he relies upon the findings of past repeated questioning as evidence that the Authority erred in some unspecified way in considering the "real chance" test. In substance I agree with the Minister that this ground seems to reduce to one of irrationality or unreasonableness. 73 As was pointed out in DCP16, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]: The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the 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. 74 Moreover, at [135] their Honours continued: 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. 75 In this case, there was evidence before the Authority and the delegate that the security and economic situation for Tamils in Sri Lanka had changed markedly since the appellant's departure from that country and so it was in that context that the claims of past questioning were to be and were considered. As the Authority observed (at [27] and [30]): I accept that given the applicant's prior experience of detention and questioning by authorities, he is concerned about future treatment by the CID and the army should he return to Sri Lanka. During the interview, the delegate raised with the applicant the impact of the passage of time since the applicant's departure in 2012. Recent reports of country information do not support a conclusion that Tamils, including young Tamil men from the Northern Province, are being systematically targeted and subjected to serious harm because of their race and/or area of origin. The United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka issued in 2012, states that in its opinion, originating from an area previously controlled by the LTTE does not of itself result in the need for international refugee protection. … Given the applicant's profile, the country information about the change in Sri Lanka's political and security landscape, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities, including the local CID and army, on return to Sri Lanka. (Citations omitted.) 76 Once it is appreciated that the Authority also considered the changed country information in assessing the future risk of harm, the findings of past questioning are consistent with a finding that the appellant is no longer of any interest to the authorities. It is difficult to see how that latter finding could be said to be illogical or as otherwise revealing or manifesting some unspecified error in relation to the applicable test for the relevant real chance or risk. Moreover, the previous harassment and questioning of the appellant were explained by the Authority on the basis not of the security force's interest in him in particular, but as a function of their directing such harassment and questioning at Tamil males generally at an earlier time. 77 This ground of appeal also fails.

DUZ17 v Minister for Home Affairs

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)

Cited By (2)