The applicant did not file any written submissions in support of his application nor make any substantive submissions at hearing. His only submission appeared to be directed to the Authority's rejection of his claimed involvement with the TNA and harm arising from that involvement. The applicant submitted that there appeared to be some differences in the dates in his SHEV interview which caused confusion. The applicant submitted that he could only provide documents he had and not those he did not have.
[2]
Why leave is refused for the applicant to extend time and to appeal the interlocutory decision
[3]
For the following reasons, I will not grant the applicant leave to extend time or appeal the interlocutory decision. There is overlap between the grounds as articulated in the applicant's application, his proposed grounds of appeal and his judicial review application below.
In support of the applicant's application, he contended that the Court below erred in upholding the Application, particularised in three ways.
Proposed particular a is directed to the primary judge's reasons for refusing to reinstate the applicant's application and an unparticularised allegation that the Authority misunderstood aspects of the evidence. The applicant has failed to identify any error in the primary judge's reasons: The primary judge outlined and applied the correct test in considering the reinstatement application (PJ[55]-[69]). Proposed particulars b and c, reagitate the applicant's review grounds below, as set out at PJ[33]. The primary judge summarised the parties' respective submissions with respect to each of these grounds (PJ[40]-[54]) and thereafter considered whether the applicant had reasonably arguable prospects of success with respect to those grounds (PJ[55]-[69]). To the extent that each of the particulars seek to impugn the primary judge's findings that the applicant had not established reasonably arguable prospects of success as to his review grounds of the Authority's reasons, these claims are dealt with further below, and for those reasons, have no ostensible merit.
Turning to the grounds as articulated in the draft notice of appeal. Proposed ground one was not raised by the applicant in the Court below. Regardless, the ground misunderstands the basis of the Authority's decision. The Authority did not decline its jurisdiction. The Authority considered the applicant's claims and affirmed the delegate's decision, as it was not satisfied that the applicant was afforded protection by operation of ss 36(2)(a) or 36(2)(aa) of the Act: IAA[57] and [64].
Proposed ground two is entirely unparticularised. This in and of itself is a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ. Proposed grounds three and four are in the same terms as particulars (b) and (c) of the grounds contained in the applicant's application. They repeat the review grounds before the primary judge to which I now turn.
I have carefully considered those grounds of review, the applicant's claims as articulated in his entry interview, his SHEV application and as before the primary judge. The grounds seek to impugn the Authority's rejection of the applicant's claims of his involvement in political activity (with the TNA) and subsequent harm resulting from that activity in Sri Lanka before leaving the country. The impugned aspects of the reasoning said to give rise to this rejection are identified by the applicant at IAA[22]-[30].
The first impugned finding was identified to be at IAA[28]:
[4]
there is no evidence before me to suggest that this aspect of the applicant's evidence was interpreted incorrectly, and I do not accept it was. I find it difficult to accept that had he provided support for the TNA for a period of at least four years as claimed he would not provide the correct name of this group when he an opportunity to do so.
[5]
This was said to be in error because, according to the applicant, he had not claimed to have supported the TNA for four years rather, he asserted the following:
[6]
b. The applicant did not claim he provided support for the TNA for a period of at least four years. Rather he claimed both that he asked villagers what they wanted sometime after 2008 (paragraph 23), and also that he did volunteer work for the TNA during the 2012 election and on election day. (paragraph 4; paragraph 24). This period claimed was September - October 2012;
c. There was never any suggestion by the applicant he assisted the TNA for a period of at least four years. The evidence more likely was he assisted the TNA for about 1 month in 2012 and for a short period of perhaps days onwards on one occasion only, sometime 2008;
d. Accordingly the IAA made a conclusion against the applicant based upon a misunderstanding of the evidence and thereby committed jurisdictional error.
[7]
It is apparent that the applicant's paragraph references are either to the Authority's decision or his statement filed in support of his SHEV application.
A review of the SHEV application material revealed that the applicant asserted that between 2008 and 2010, when he returned to his home, he "sometimes attended meetings of the ...TNA". During one of those visits, he was asked by Mr N Nadrajah, a member of the Provincial Council, Eastern Province, to help "by going to a few neighbouring villages to find out what they needed by talking to villagers". In support of this assertion, the applicant relied upon a letter of support from Mr Nadrajah, who stated he "was an active supporter of Tamil National Alliance ...[and] worked hard for the victory.....(2012)". The applicant claimed that he had been approached by Mr Selvarasa (currently a Member of Parliament, but he was a candidate in the 2012 election) to join and help them lobby for the TNA. The applicant stated that during the election period in 2012, he volunteered for the TNA which involved lobbying, putting up posters, providing information, canvassing people and helping on election day. Mr Selvarasa provided a letter of support that stated the applicant "worked hard for the victory of TNA during the election that was held on April 2010". (My emphasis). The Authority noted this discrepancy in the evidence as to when the election was held.
The relevant part of the Authority's reasons, at IAA[28], is extracted in full:
[8]
Approximately seven weeks after his arrival in Australia, the applicant participated in an entry interview. There is a recording of this interview before me. The applicant was asked to briefly provide the reasons for leaving Sri Lanka. He referred to having worked for a political Tamil movement group and arising from this people in a white van had gone looking for them. He was specifically asked what the name of the political group was. He appears to pause before stating that it was the Tamil United Group. This inconsistency was put to the applicant at the protection visa interview. He responded that he had mentioned the TNA. I have listened to the recording and the Tamil United Group was provided as part of the translation for the applicant's evidence. Aside from the applicant's assertions, there is no evidence before me to suggest that this aspect of the applicant's evidence was interpreted incorrectly, and I do not accept it was. I find it difficult to accept that had he provided support to the TNA for a period of at least four years as claimed he would not provide the correct name of this group when he an opportunity to do so. Furthermore, he made no mention of the more significant aspect of his claims of abduction and detention by unknown people in a white van for approximately two to three hours in the month prior to his departure at the entry interview. I have considered the applicant's explanation in the protection visa statement that he "did not tell the immigration officer everything about [his] experiences in Sri Lanka when he arrived in Australia as [he] only had a quick 35-40 minute interview" however I am unpersuaded by it. The entry interview recording is approximately one hour in length and I am satisfied that within this time the applicant was given an opportunity to provide this information. Had his claims regarding his abduction had any credible basis he would have provided it, even if only to briefly mention it when he had an opportunity to do so, he did not.
[9]
What this aspect of the Authority's reasons reveals is that the Authority did not, for a number of reasons, accept the applicant's claims as to his involvement with the TNA. The Authority noted that the applicant had, when asked in the entry interview which political group he was supporting, stated the "Tamil United Group". The Authority listened to a recording of this interview and noted that there was no evidence before it to suggest that this aspect of the applicant's evidence was interpreted incorrectly. It was in the context of making this finding that the Authority went on to state that it found it difficult to accept that the applicant would have supported the TNA for at least four years and could not correctly name the political group. It was open, on the evidence before the Authority, for the Authority to characterise the applicant's evidence of involvement as being "for at least four years".
The second ground of review concerned the Authority's consideration of three letters said to be corroborative of the applicant's claims of political activity. Issue is taken with one aspect of the paragraph, IAA[30], namely:
[10]
The letter dated 25 February 2015 states that the applicant "worked hard for the victory of the TNA during the election that was held on April 2010" and appears to be at odds with the applicant's evidence at the protection visa interview that he had not assisted TNA at elections until 2012. The applicant also makes no specific mention of his support to the TNA in any election in 2010 in his protection visa statement or STARTTS report.
[11]
As adverted to above, the letter dated 25 February 2015, was from the now Member of Parliament, whom the applicant claimed to have assisted in 2012 not 2010.
This aspect of the Authority's reasoning was said by the applicant to be in error for the following reasons:
[12]
b. The IAA stated that the applicant had previously claimed that 'sometime between 2008 and 2010, "M" who was the leader of the neighbouring village and a member of the Provincial Council of Eastern Province asked for his help. He asked him to go to the villagers and ask them what they needed. He volunteered to do this as he wanted to help other people.' (para 23)
c. The IAA was incorrect therefore to hold that the evidence was at odds.
d. Accordingly the IAA made a conclusion against the applicant based upon a misunderstanding of the evidence and thereby committed jurisdictional error.
[13]
I can discern no jurisdictional error in the Authority's reasons. I do not accept that the Authority misunderstood the evidence. The Authority noted the discrepancy. The fact that the Authority had accepted other evidence as to the assistance the applicant had provided between 2008 and 2010 (at IAA[23]) did not mean that the Authority could not find that there was a discrepancy as to the applicant's evidence as to when he provided assistance with respect to a particular election campaign.
[14]
For these reasons, the application must be dismissed with costs.
[15]
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.
Parties
Applicant/Plaintiff:
EWI19
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FCA 1462
Legislation Cited (3)
Court of Australia Act 1976
Circuit Court Rules 2001
Court Rules 2011
Cases Cited (1)
On 6 April 2021, the application for judicial review was listed for hearing before the primary judge. The applicant did not attend the hearing, and the matter was dismissed for non-appearance pursuant to rule 13.03(1)(c) of the Federal Circuit Court Rules.
On 22 July 2021, the applicant filed an application in a case to reinstate the substantive application, which was heard by the primary judge on 15 October 2021. On 21 October 2021, the primary judge made orders dismissing the application for reinstatement.
The primary judge correctly observed (at PJ[55]) that he had to consider three factors in a reinstatement application, citing MZYEZ v Minister for Citizenship[2010] FCA 530 at [7]: