EQS17 v Minister for Home Affairs

Some key aspects of the Authority's reasons. 5 In submissions in support of the visa application, the appellant relied upon statements in the UNHCR Eligibility Guidelines for Sri Lanka 2012 to the effect that a person's real or perceived links to the LTTE may give rise to a need for international protection. The same submission was advanced before the Authority and provided the foundation upon which the visa was sought. 6 The appellant claimed to have high profile family members who were connected to the LTTE. The Authority characterised the appellant's claim as being based upon an imputed association with the LTTE. 7 After considering the matters raised in support of the appellant's claim in some detail and making findings, the Authority found that 'although the applicant had been questioned on a couple of occasions by police and CID, has family connections to members of LTTE, has travelled and resided in LTTE-controlled areas, provided accommodation, food and monetary support to the LTTE between 2000 and 2006 and attempted to facilitate the departure of his 10 year old son from Sri Lanka, he has not ever been detained and/or questioned for lengthy periods by the authorities, subjected to serious mistreatment, arrested, charged or required to undertake rehabilitation due to being suspected as an LTTE supporter' (para 34). 8 The Authority then concluded that it did not consider the appellant to have a profile with the Sri Lankan authorities for involvement with the LTTE. The reviewer was not satisfied that the appellant would be targeted on return to Sri Lanka (paras 35, 48). 9 Therefore, the reasons that the claims to protection failed was because the Authority did not accept that the appellant had a profile for involvement with the LTTE of a kind that would expose him to a risk of harm if returned to Sri Lanka. In context, this was a rejection of his claim that he would be perceived as having links with the LTTE through family or other associations of a kind that would expose him to a risk of harm.

The need to demonstrate jurisdictional error 10 The jurisdiction of the court below is confined by s 476 of the Migration Act 1958 (Cth). It is common ground that in order to have succeeded on the application for review before the primary judge, the appellant had to demonstrate jurisdictional error. In order to demonstrate error of that kind, it must be shown that the decision that has been made lacks the characteristics necessary for it to be given force and effect by the statute. It must be a decision of a kind that the Authority was not authorised by the statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]-[25]. 11 Importantly, the Authority, when undertaking a review, has been entrusted with the statutory task of evaluating the factual basis for the appellant's claim. Therefore, it does not exceed its Authority if it makes a factual finding with which others may disagree. Rather, it must be shown that by reason of unreasonableness, illogicality or a failure to engage properly with the fact-finding task or some other reason, the approach to fact-finding lacked the character or quality of decision that the Authority had been authorised to make. Despite this, at a number of points, the arguments advanced for the appellant were no more than an attempt to challenge the factual findings by the Authority. This was insufficient to demonstrate error. 12 With that general position in mind, I now consider each of the grounds for appeal.

Ground 1: UNHCR Guidelines 13 Before the primary judge, the complaint made was that the Authority did not refer to the UNHCR Guidelines and failed to take them into account. Reliance was placed upon submissions advanced that referred to the guidelines. 14 The primary judge found correctly that the reasons of the Authority showed that it had focused on the appellant's profile in relation to LTTE connections: at [31]. Given that the reference in the submissions to the UNHCR Guidelines was made in order to provide the foundation for the claim that persons with perceived links to the LTTE were at risk, the submission did not invite further consideration of the matters in the guidelines unless the correctness of that proposition was to be questioned by the Authority. It was not. 15 On the appeal, it was asserted that there was a failure to give realistic consideration to the appellant's LTTE connection, there was no intellectual engagement with the UNHCR Guidelines and there was a failure to realistically engage with the claims. The submissions suffer from a number of defects. First, they are advanced without any particularity. Second, the Authority considered in detail the matters advanced by the appellant that were said to provide the basis for his claim that he would be perceived as having links to the LTTE and then reasoned to a conclusion that such a claim had not been established. The primary judge reviewed the consideration of these matters by the Authority. Third, there was no call for an intellectual engagement with the content of the UNHCR Guidelines unless the statement about risk to those with perceived association with the LTTE was not accepted. As I have said, that was not how the Authority dealt with the claim. It accepted that there was such a risk for persons who had an imputed association with the LTTE but found that the appellant was not such a person. 16 Therefore, there is no merit in ground 1.

Ground 2: Challenge to Authority's conclusion as to perceived association 17 The second ground asserts error in the way the Authority made its findings about matters relied upon by the appellant as the basis for his claim that he could be perceived as having links to the LTTE. 18 The primary judge provided reasons in which he dealt with arguments to the effect that the Authority's reasoning was irrational or illogical. The approach to be applied in considering such claims was recently summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. 19 The Authority's reasons have not been shown by submissions before me to be irrational or illogical. No submission has been advanced identifying any respect in which they might be said to have that character. 20 It is necessary to say a little more about one of the matters raised in support of this ground when presented as a ground of review before the primary judge. It was submitted that the Authority did not consider whether the appellant's claims of extortion would amount to serious harm. The primary judge did not refer to that aspect of the ground in his reasons. 21 In written submissions, the appellant relies upon that failure and advances the same point on appeal. The point has no merit because the Authority considered in some detail the aspects of the claim that were based upon an alleged instance of extortion (paras 24-26, 30-33, 36). The fact that there is no merit in the claim may explain why it was not referred to by the primary judge. 22 It follows that no error has been demonstrated in the reason of the primary judge as to the matters raised by ground 2.

Ground 3: Complaint concerning alleged warrant for the appellant's arrest 23 The appellant claimed to face risk of arrest and detention because he did not take his son for reporting but instead arranged for him to depart Sri Lanka illegally and there was a warrant for the appellant's arrest as a result of his conduct. Before the Authority, the appellant submitted that this was a relevant matter. In the appeal, it is said that the Authority should have taken into account the existence of the warrant in considering the consequences for the appellant on return to Sri Lanka as part of its assessment. 24 The Authority considered this claim in dealing with the question whether the appellant had a well-founded fear of persecution. It said it had considerable doubt that there is an open arrest warrant for the appellant (para 21). 25 Therefore, the primary judge was correct to find that there was no need to refer to the claim when it came to considering whether it might lead to arrest and detention if the appellant was returned to Sri Lanka. It was a factual claim that had not been accepted by the Authority. 26 In oral submissions, leave was sought to argue that the Authority should have considered whether the appellant would have a liability that might expose him to arrest and detention, even though there was no warrant. The submission that was advanced to the Authority was as follows: We submit that the delegate failed to ascertain the correct facts before she made a finding on this issue. The Applicant never at any time made this statement that he had illegally adopted a son. The Applicant expressed fear that he would be seriously harmed by the CRD if he were to return to Sri Lanka because he did not comply with the reporting obligations by the authorities after the son was caught by the authorities at his first attempt to depart Sri Lanka. As a result, a 'open warrant arrest' was issued to the Applicant. He believes that he would be arrested at any time if he produced his national ID card. 27 The submission advanced was in terms that depended upon the existence of a warrant as the reason why the appellant was at risk of arrest and detention on return. For that reason, I refuse leave to argue the alternative ground as it lacked the necessary foundation in the content of the submission that was advanced to the Authority.

Ground 4: Letter to Human Rights Commission of Sri Lanka 28 The Authority considered a letter from the Human Rights Commission of Sri Lanka. It found that as the letter (a) had been prepared at the request of the appellant's wife and based on her testimony, (b) was not specific about the matters raised, and (c) was dated about the time of the appellant's visa interview, it was made to embellish the appellant's claim for protection and provided no corroboration for his claims (para 31). The Appellant complained about the Authority's reasoning concerning the letter. No specific matters were advanced in written submissions, but in oral submissions it was said that the Authority had rejected the letter based on when it was presented and it did not engage with the contents of the letter. 29 I do not accept that characterisation of how the Authority approached the matter. The Authority considered the nature of the content of the letter in reaching the conclusion that the letter did not provide corroboration of the appellant's account. It was a matter of factual finding by the Authority as to whether the matters in the letter provided material upon which the Authority might rely in making its decision. The Authority provided reasons to support its view that the matters in the letter provided no corroboration for the appellant's claims. No error has been demonstrated in the finding by the primary judge that the complaints raised did not demonstrate jurisdictional error.

Ground 5: Challenge to finding that appellant could subsist in Sri Lanka 30 Before the Authority the appellant referred to his mental health issues arising from the trauma he had experienced during conflict in Sri Lanka as a matter that affected him when bringing forth his claims for protection (para 12). The claim was advanced as a matter to be taken into account when evaluating what the appellant had said about matters that supported his claim. The Authority dealt with the claim on that basis. 31 However, the appellant says, and argued before the primary judge, that the Authority should have brought his mental health issues to account when making a later finding about his ability to earn an income in Sri Lanka such that he could subsist. 32 The way in which a mental health issue may affect the recounting of events which have given rise to that issue is a very different thing to the way in which such issues might affect the ability of a person to earn an income. The primary judge found that no claim had been advanced that the appellant's mental health issues might affect his ability to work, and no medical evidence had been presented to the Authority to that effect (para 37). 33 There is no challenge to the accuracy of these findings. In the course of oral submissions, the appellant was invited to identify where a submission of that kind was advanced and no materials were identified. Therefore, there has been no error demonstrated in the statements by the primary judge. On that basis, the review ground was properly rejected by the primary judge.

Ground 6: Reasons provided by the primary judge 34 The submissions advanced to support this ground were the effect that the primary judge had failed to articulate how a conclusion was reached on the grounds considered. In oral submissions, the argument was confined to grounds 2 and 3. There was no attempt to support this ground with any explanation. 35 For reasons I have given, the primary judge did explain his reasons on each ground and no error has been demonstrated in those reasons.

Conclusion 36 For the reasons I have given, the appeal should be dismissed. It is accepted that costs should follow the event. I will make orders accordingly. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.