FEDERAL COURT OF AUSTRALIA

DDA16 v Minister for Immigration and Border Protection [2018] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. On 8 March 2018, the primary judge heard an application for judicial review of a decision of the Immigration Assessment Authority, and on 16 March 2018, dismissed that application in a reserved judgment. The Authority had affirmed a decision of a delegate of the first respondent, then known as the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant.

2    The appellant is an ethnic Tamil and a Christian from the Eastern Province of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 18 November 2012. In an entry interview conducted with the help of an interpreter on 5 February 2013, he said that he had left Sri Lanka after he was beaten and his life was threatened due to his involvement as a van driver for a candidate in the September 2012 provincial council elections in Sri Lanka. On 23 December 2015, the appellant was invited to apply for a SHEV. On 4 February 2016, he lodged an application for a SHEV.

Initial protection claims

3    In a statement accompanying his SHEV application, the appellant expanded on the claims he made in his entry interview. As to his role as a van driver, he described having been asked to assist by a relative who was contesting the September 2012 provincial council elections as a candidate for the Tamil National Alliance (TNA). The appellant said that this involved being the candidate’s personal driver for about 10 days in September 2012. He said that TNA members and supporters would accompany them when visiting various villages to canvass for votes. He said that, a few days prior to the election, he was targeted by unknown armed Tamil men, who stopped the van and beat him. The candidate was not present, but two other TNA supporters were there. He said that he was afraid to report the incident to police, as such armed groups worked closely with the authorities and complaints about them were not taken seriously. He said he was targeted and beaten a second time by the same men.

4    The appellant said that, after the second beating, he feared that he would be killed if he remained in the area, and fled to another town where his aunt had a house. While he was hiding there, he learnt that the men had gone to his parents’ house in search of him, had threatened his father and told his father that they would kill him if they saw him. His family decided to send him to a safe country. His father made arrangements with a people smuggler for him to leave Sri Lanka by boat.

5    The three fears that the appellant identified were of:

(1)    harm by members of the Tamil armed groups;

(2)    extortion by Tamil paramilitary groups who operated with the support of the government, such that it was not possible to report them to police; and

(3)    imprisonment upon his return because he had left Sri Lanka illegally, and being harmed if imprisoned.

Before the delegate

6    Because the claims made before the delegate form the foundation for the findings made by the Authority, and because the appellant takes issue with the precise words used by the Authority, it is necessary to summarise briefly the delegate’s reasons.

7    The appellant was interviewed about his claims on 14 July 2016. Based on the consistency of his claims and the specific details he was able to recall about his work as a driver, the delegate accepted that the appellant had worked as a driver for the TNA candidate for approximately 10 days around the time of the 2012 provincial council elections. However, based on his responses in the interview, the delegate found that the appellant was not actively involved in campaigning for the candidate or for the TNA during those elections, other than assisting as a driver. Similarly, the delegate found that the appellant was not a member of or coordinator for the TNA, as had been indicated in some of the appellant’s supporting documentation. That documentation, which included documents from the candidate, made assertions that the appellant had a much higher degree of involvement in the TNA, but was inconsistent with his own evidence.

8    The delegate found that it was likely that the appellant was approached by members of a paramilitary group in Sri Lanka. The delegate accepted that the appellant had encountered members of that group twice while working for the candidate and had been beaten on the second encounter. The appellant disavowed his entry interview claim to have been beaten on both occasions, asserting that he had become confused due to tension he was experiencing at the time of that interview. The delegate considered that the appellant was harmed with the intention of disrupting the election campaign and that he experienced pain following the beating, although he did not sustain visible injuries.

9    The delegate also accepted that the appellant’s father was visited by members of the Sri Lankan army later in 2015. However, the delegate found that, given the significant period of time since the 2012 incidents and the fact that the appellant’s family had not experienced further visits, this visit was part of the monitoring of Tamil occupants, which was reported to have occurred in the area. Given that the appellant’s family had not experienced further visits or questioning since 2012, the delegate found that the appellant was not of ongoing interest to the Sri Lankan paramilitary group or authorities in relation to his involvement in his relative’s political activities.

10    The delegate accepted a further claim made at the interview that the appellant was arrested and detained by police in September 2012 on account of his Tamil ethnicity and imputed association with the Liberation Tigers of Tamil Eelam (LTTE). However, given that he was released after one or two days without any apparent difficulty, while other people were held for longer, the delegate found that the appellant was not personally suspected by the police of being associated with the LTTE.

11    The delegate also accepted that the appellant has a substantial scar on his right lower shin, that the origins of the scar were unknown and that the appellant considered that it might have been sustained while falling when he was attacked by the armed Tamil men. The delegate also accepted that the appellant had departed Sri Lanka unlawfully.

12    The delegate identified the appellant’s protection claims, as explicitly made or evident from the facts, as being:

(1)    fear of persecution based on his work for the TNA candidate during the 2012 provincial council elections;

(2)    harm on account of his Tamil ethnicity and imputed pro-LTTE/pro-separatist/anti-Sri Lankan government political opinion; and

(3)    memberships of various social groups, including:

(a)    young Tamil males;

(b)    young Tamil males from former LTTE-controlled areas;

(c)    young Tamil males with scarring; and

(d)    failed Tamil asylum seekers who departed Sri Lanka illegally.

13    After analysing the claims made and considering country information, the delegate found that there was no real chance of the appellant being persecuted on any of the above bases. The delegate accepted that the appellant may experience some discrimination or have fewer opportunities in Sri Lanka than Sinhalese Sri Lankans, but considered that this would not amount to “significant harm” as defined in the Migration Act 1958 (Cth). While the delegate accepted that the appellant may be questioned, fined and detained for a short period of time due to having departed Sri Lanka illegally, this was found not to amount cumulatively to significant harm as defined in the Act. Accordingly, the complementary protection criteria were not met either.

Before the Authority

14    On 29 August 2016, the delegate’s decision was automatically referred to the Authority for a limited form of review. The Authority conducts reviews of protection visa refusals in relation to “fast track” applicants, being protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The Authority does not have the power to grant protection visas, but only to either affirm the delegate’s decision or refer the case back to the Minister’s Department for further consideration, for example, after making a finding that the applicant is a refugee.

15    The Authority largely came to the same conclusion as the delegate as to the appellant’s lack of political involvement in the TNA, and the limited nature of his role as a driver for the TNA candidate. The Authority expressly rejected the material supplied by the former candidate as being inconsistent with the appellant’s own claims. However, the Authority came to a less favourable view than the delegate as to the claims made by the appellant about being accosted and beaten by armed Tamil men.

16    Because the appellant makes much of several errors in dates in the fact-finding part of the Authority’s reasons, it is necessary to reproduce a portion of those reasons verbatim as follows:

12.    Aspects of the applicant’s account to have been accosted and beaten by Tamil men while working as a driver for a candidate standing for the TNA during the 2012 provincial elections contain internal inconsistencies that bring his claims into doubt.

•    The applicant has consistently stated that for a period of ten days he drove a TNA candidate who was campaigning for the provisional election. At the SHEV interview the applicant stated he was not able to recall the dates of the ten days he was driving the candidate. The applicant was not able to recall whether he was working in the driving role on the day of the election. The applicant was able to recall that he was detained by the police on 16 September 2016 in [village name] and he stated that he was still working for the candidate at the time. I note that voting for the provincial election was held on 8 September 2012, eight days before the claimed detention by the police. On this basis, noting that the applicant’s consistent claim that he worked in this driving role for only ten days, the applicant drove the candidate for only two days prior to the election. This is not consistent with his account that “a few days prior” to the election he was accosted in the first attack by unknown Tamil men and two days later the second attack occurred.

•    The applicant states that after the second attack he stayed in hiding at his aunt’s home in [village name] in fear of further harm. This is not consistent with his claim to have been in his home village of [village name] on 16 September 2016 and still working for the candidate.

•    In his SHEV application the applicant stated that he was stopped and beaten by unknown Tamil men on two occasions. At his SHEV interview the applicant stated that he was beaten only on the second occasion. The delegate provided the applicant an opportunity to comment on this inconsistency and the applicant stated that he may have said this as he was tense when completing his SHEV application. I note the applicant also made the claim to have beaten on both occasions at his SHEV application. However I do not accept this accounts for him making this claim when completing his SHEV application and at the Entry interview and I find that the applicant’s inconsistent recount of these incidents damages the credibility of his claims.

13.    I consider it plausible that the applicant acted as a driver for a ten day period for the TNA candidate who was still standing in the September 2012 provincial election. I accept that the 2012 provincial elections were conducted in a tense and volatile environment and country information demonstrates that there was significant harassment by all sides of their opponents. I find it plausible that the applicant, as a driver for a candidate, may have been harassed by people representing opposing parties. However, I find the internal inconsistencies in the applicant’s claims to be significant, and I do not accept the applicant was beaten by unknown Tamil men on either the claimed first or second occasion.

14.    I have not accepted that the applicant was beaten by unknown Tamil men and it follows that I do not accept that the applicant has a subjective fear of the police, security authorities and paramilitary groups in Sri Lanka.

15.    It also follows that I do not accept the applicant’s claim that armed Tamil men came to the family home looking for him and threatened his life after the second incident. Furthermore, from the applicant’s account he was not identified by the Tamil men in the claimed incidents and there is no evidence to support that they knew who he was or where he lived to enable them to pursue him at the family home.

16.    The inconsistencies discussed above also bring the applicant’s claimed detention for two days by the police on 16 September 2012 into doubt. The applicant claims he was in [village name] on this date, however he claims to have been in hiding at his aunt’s home at the same time, having fled there earlier after the second attack by the unknown Tamil men. In his SHEV interview the applicant recounted that he was detained for two days and was asked many questions in that time. However he was unable to recount any of the questions he was asked by the police during his detention. The applicant’s inability to recall any questions he was asked by the police, together with the inconsistencies in his account of his whereabouts, lead me to find that he was not arrested and detained for two days as claimed. At this time police actively monitored the Tamil population and Tamils were regularly stopped and questioned and may have been taken to a police station for further questioning. As a young Tamil in Eastern Province I consider it plausible that the applicant would have come to police attention and been rounded up and questioned along with other Tamils. I accept that the applicant may have come to police attention; however I do not accept that he was arrested and detained by the police for two days from 16 September 2012.

17    The Authority assessed the appellant’s claims of having a well-founded fear of persecution for the purposes of s 5H(1) of the Migration Act by reference to the factual findings already made, as largely reproduced above. In light of the fact that the appellant did not have any links with the LTTE, the Authority was not satisfied that there was a real chance of serious harm arising from his Tamil ethnicity or his being from an LTTE-controlled area.

18    The Authority accepted as plausible that the appellant came to the attention of the police in 2012, but was not satisfied that this pointed to a real chance of harm on return. The Authority observed that, while general monitoring of the Tamil population was common at that time, this had decreased under the new government according to advice from the Department of Foreign Affairs and Trade (DFAT). The Authority found that it was possible that the appellant may have been recognised while driving for the TNA and that he may have been imputed with a political profile on that basis. However, it did not accept that this gave rise to a real chance of any harm should he return to Sri Lanka now. This was especially so having regard to country information that indicated that the general easing of tension across Sri Lanka had allowed the 2015 elections to be conducted without repetition of the violence in 2012. In this regard, the Authority noted that the presidential election on 25 January 2015 was relatively orderly according to advice from DFAT, and that the Commonwealth Observer Group had described the August 2015 Parliamentary elections in positive terms.

19    The Authority further observed that the TNA is now the opposition party in Sri Lanka and that there was no indication of ongoing harassment of ordinary TNA members or those providing services to the party. Accordingly, the Authority found that if the appellant were to return to Sri Lanka now, there was no real chance of any residual harm to him arising from his role as a driver for the political candidate in 2012.

20    The Authority accepted that the army visited the appellant’s family home in 2015 and inquired about the appellant, noting the appellant’s statements on this topic at the SHEV interview. The Authority noted that the appellant’s father had purportedly told the army that the appellant had gone to Australia, and that there was no indication that the army issued any threats, nor any indication that there had been any follow-up since that visit. As such, the Authority was not satisfied that this visit gave rise to a real chance of harm from the army or other authorities upon the appellant’s return.

21    The Authority considered the appellant’s claims to fear extortion demands on return to Sri Lanka to be speculative. While there were credible reports that Tamil paramilitary groups had been involved in criminal activities and have resorted to extortion to raise funds, the Tribunal observed that neither the appellant nor his family members had been subject to extortion demands in the past and there was no reason to believe that this would occur in the foreseeable future.

22    The Authority accepted that the appellant has scars on his body, but observed that the country information did not indicate that body scars alone are likely to attract the attention of the authorities. The Authority accepted that the scars may result in questions about their origin, but was not satisfied that this would result in a real chance of harm in circumstances where the appellant had no other profile of concern.

23    The Authority accepted the appellant’s claim that he departed Sri Lanka illegally and that he would be liable to punishment on return under the Immigrants and Emigrants Act, which governs movement to and from Sri Lanka. After referring to country information as to what happens to such persons, the Authority concluded at [33] that:

I accept that the applicant will be detained and that the period of detention could extend up to four days until his matter is presented to a magistrate for bail consideration. However, I find that this does not amount to the level of a threat to life or liberty, or to significant physical harassment or ill treatment, or otherwise amount to serious harm. Further, the procedures under which the applicant as a returnee would be subject are applied on a non-discriminatory basis under a law of general application, and therefore do not constitute persecution for the purpose of ss.5H(1) and 5J(1) of the Act. I note that DFAT has reported some accounts of mistreatment of returning asylum seekers, however the indications are that those targeted for mistreatment are persons with a profile that indicates connections with the LTTE.

24    The Authority concluded that the appellant was not of adverse interest to the Sri Lankan authorities and was not at risk of experiencing serious harm in Sri Lanka either now or in the foreseeable future. The Authority was therefore not satisfied that the appellant had a well-founded fear of persecution, such that he did not meet the requirements of the definition of “refugee” in s 5H(1) of the Migration Act and thus did not meet the requirements of s 36(2)(a) of the Migration Act. The Authority assessed the appellant’s claims against the complementary protection criteria, but was not satisfied that the appellant would face a real risk of significant harm upon returning to Sri Lanka. The Authority therefore concluded that he did not meet the requirements of s 36(2)(aa) of the Migration Act.

Before the primary judge

25    By an amended application for judicial review, the appellant advanced the following grounds of review before the primary judge:

1.    The IAA failed to consider all of my claims thereby committing jurisdictional error.

2.    The IAA failed to put me on notice with regard to adverse concerns that formed part of the reason to refuse my claims.

3.    The IAA did not consider my claims cumulatively.

26    The primary judge dealt with the appellant’s grounds concisely as follows:

16.    Each of these grounds was interpreted to the applicant during the hearing but the applicant, who is not legally represented, made no submissions in relation to any of the grounds. The applicant referred to the IAA’s not having accepted his claim that he had been beaten. The applicant, however, said he had nothing to say about that. I will take this to be a claim that it was not reasonably open to the IAA not to accept the applicant’s claim that he had been beaten; and I will deal with it after I consider the grounds stated in the application.

17.    The first ground cannot be made out. As should be apparent from my recounting of the applicant’s claims and the IAA’s reasons, the IAA did consider all of the applicant’s claims.

18.    The second ground also cannot be established. It does not identify the adverse concerns of which it is claimed the IAA failed to notify the applicant. In any event, there was no obligation on the part of the IAA to notify the applicant of any concerns it may have had about the applicant’s claims. As was submitted by the Minister, the IAA’s procedural fairness obligations are exhaustively stated in Division 3 of Part 7AA of the Act; and that, under s.473DC(2) of the Act, the IAA does not have a duty to obtain, request or accept any new information.

19.    The third ground also establishes no jurisdictional error. As I have already concluded, the IAA considered all of the applicant’s claims.

20.    In response to the matters raised by the applicant at the hearing, Mr Galvin, who appeared on behalf of the Minister, drew my attention to the claims the applicant made about his being beaten, and the IAA’s reasons for not accepting that claim, and submitted it was reasonably open to the IAA not to accept that part of the applicant’s claims for the reasons it gave. I have set out earlier in these reasons the applicant’s claims that he had been accosted and beaten, and the reasons on which the IAA relied for not accepting that part of the applicant’s claims; and I agree with the Minister’s submissions that it was reasonably open to the IAA not to accept that part of the applicant’s claims for the reasons it gave.

Appeal to this Court

27    On 6 April 2018, the appellant filed a notice of appeal to this Court with the following single, sparse ground of appeal:

The FCC Judge made a legal error when he dismissed my proceedings in the circuit court [Federal Circuit Court] he did not consider the grounds of appeal properly.

28    Unsurprisingly, the Minister’s written submissions assert that, with no appellable error having been identified, this is not a ground of appeal at all. However, the appellant provided written submissions at the appeal hearing, which I am prepared to treat as constituting particulars of the ground of appeal relied upon. The appellant advised that the submissions were prepared for him by a Tamil society in Queensland, and did not say anything orally in support of them. The Minister’s solicitor was able to respond to those submissions orally, despite only having received them that morning.

29    The appellant’s written submissions advance five complaints. The first is a complaint about not having received the appeal book. However, the appellant had received the court book for the hearing below, as he acknowledged, and the additional documents in the appeal book largely emanated from him.

30    The other four complaints in the appellant’s written submissions concern asserted errors by the Authority. As noted above, I am prepared to treat these as constituting particulars of asserted error by the primary judge in failing to make corresponding findings that the Authority had erred in those respects. While, strictly speaking, these may not have been points squarely raised below, if at all, it is expeditious to simply address them beneficially as particulars and thereby sub-grounds of appeal as if they had been raised below.

First particular: error at [12] of the Authority’s reasons

31    This sub-ground relies upon two errors in the Authority’s reasons in the first and second dot points in [12] (reproduced at [16] above). The error is in referring to 16 September 2016 as being the date on which the appellant said that he was detained by police. The date that the appellant said that this occurred was 16 September 2012. Thus, the correct year for the Authority to refer to was 2012, not 2016. The appellant submits that, although the Authority also refers to the correct date (in the fourth dot point in [4], in [13] and in [16]), the error should nonetheless be considered to be significant because it means that his claims were not considered properly. The appellant submits that this point was taken before the primary judge. It is not clear that this is correct, but, in the absence of a transcript, I am prepared to give the appellant the benefit of the doubt and assume that it was in some way adverted to.

32    The Minister submits that it is clear that this was no more than a typographical error and that, in the context of the rest of the reasons, it is clear that the Authority understood that the correct year was 2012. That submission must be accepted. The Minister’s point is amply demonstrated by the following factual findings in [16] (reproduced at [16] above), where the Authority’s reasons reflect a clear understanding of the correct date:

(1)    at the start of [16], the Authority observes: “The inconsistencies discussed above also bring the applicant’s claimed detention for two days by the police on 16 September 2012 into doubt. The applicant claims he was in [village name] on this date”; and

(2)    in the last sentence of [16], the Authority states: “I do not accept that he was arrested and detained by the police for two days from 16 September 2012”.

33    This sub-ground of appeal must therefore fail.

Second particular: claims not fully considered; unreasonable findings

34    The appellant asserts that the Authority did not fully consider his claims and made unreasonable findings. In substance, this sub-ground covers much of the same territory as the first ground of review before the primary judge, albeit that there is greater detail in the written submissions before me than was evidently before his Honour.

35    According to the appellant, as the Authority had accepted that:

(1)    he worked as a driver for a TNA candidate in 2012 (at [9]);

(2)    during the elections there was a tense and volatile environment (at [13]);

(3)    he came to the attention of police in 2012 (at [21], referring to the finding at [16]);

(4)    he was harassed when working as a TNA driver and may have been imputed with a political profile (at [22]); and

(5)    the army visited the family home in 2015 and inquired about him (at [23]),

it was unreasonable for the Authority, at [15], to disregard the claims that Tamil men came to his home in search of him on the basis of a minor inconsistency at [12] concerning the number of times he claimed to have been beaten.

36    The appellant submits that the inconsistency as to the number of beatings he claimed to have suffered was very minor when considered against the other claims that were accepted and should not have resulted in the Authority disregarding the other claims relied upon. The appellant submits that it was “so unreasonable”, which I take to mean legally unreasonable, for the Authority not to accept that he was beaten by the unknown Tamil men on both occasions. In his written submissions, the appellant maintains that he was beaten on both occasions and that the same men came to his home in search of him.

37    The appellant further submits that it was also (legally) unreasonable for the Authority to doubt, on the basis of the same minor inconsistency, that the appellant had, in fact, been detained for two days.

38    The Minister submits that a similar claim was made before the primary judge, as reflected in his Honour’s reasons at [16] and [20] (reproduced at [26] above), with his Honour concluding that the Authority’s finding was reasonably open to it. In support of that conclusion, the Minister points to the fact that, contrary to the appellant’s submission, the Authority’s adverse finding in not accepting that the appellant had been beaten on either occasion was not based solely on the identified inconsistencies. Rather, this was one of three reasons given in the three dot points to [12] (reproduced at [16] above). Further, the Minister submits, the Authority logically rejected the appellant’s claims that flowed from the asserted beating on the second occasion, namely of going into hiding, and of the Tamil men visiting his home after those two incidents. The Minister submits that, on the same reasoning, it was open to the Authority not to accept that the appellant had been detained by police for two days.

39    Again, the Minister’s submissions must be accepted. Upon its own examination of the appellant’s claims, the Authority was able to detect inconsistencies in those claims based on the timing of events. It was open to the Authority to do so. When the three identified inconsistencies were considered together, it was open to the Authority to accept the more straightforward and general claims in respect of which no inconsistency was identified, and to reject the central claims of having been beaten, and having been detained for two days, upon the basis of the identified and material inconsistencies. The rejection of the detention claim was also based upon other defects that the Authority detected in the appellant’s account of events.

40    There was nothing legally unreasonable in the approach taken by the Authority. It should be borne in mind that the Court’s consideration of “unreasonableness” for the purposes of judicial review is confined to the question of whether the limits and boundaries of statutory power have been exceeded. This task is strictly supervisory; the Court is not permitted to undertake a review of the merits of the decision, or to substitute its own view as to how the decision-making power should be exercised: Minister for Immigration and Multicultural Affairs v Li [2013] HCA 18; 249 CLR 332 at [66] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [12] per Allsop CJ and at [58] per Griffiths J. As in this case, an assertion that reasoning on an issue of fact is “unreasonable” may be no more than someone’s emphatic way of saying that they think the reasoning is wrong, without pointing to any error of legal consequence: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] per Gleeson CJ and McHugh J.

41    This sub-ground of appeal must also fail.

Third particular: imprisonment for four days

42    The appellant submits that, in circumstances where the Authority:

(1)    found at [33] that the detention of a person who had returned to Sri Lanka after leaving illegally could extend to up to four days;

(2)    found at [32] that prison conditions are poor, with overcrowding and poor sanitary conditions; and

(3)    referred to case law which states that loss of liberty constitutes serious harm which requires a qualitative judgment,

it was not open to the Authority to conclude that he could only remain in prison for four days, with there being no evidence before it to support that conclusion, such that it was (legally) unreasonable.

43    The appellant further submits that he was not made aware that he could only remain in detention for a maximum of four days, that he did not make such a claim and that the delegate made no finding as to how long he would be detained for. He submits that the Authority had an obligation to let him know that it believed that he would only remain in detention for a maximum of four days until a magistrate arrived.

44    The Minister submits that it is incorrect to suggest that it was not open to the Authority to conclude, at [33], that (initial) detention of a person returning to Sri Lanka after departing illegally could be for up to four days, because that finding was based on country information described by the Authority at [26] to [28]. Having regard to those earlier paragraphs, the Minister’s characterisation of the basis for [33] is plainly correct. Moreover, as to the complaint by the appellant that there was an absence of an equivalent finding by the delegate, this assertion is, upon careful consideration, incorrect. The delegate, citing the same country information on this point as the Authority, said that, should the appellant face charges for departing illegally, DFAT advice indicated that he would be arrested and held in custody until the next court sitting. The Authority expanded on the same information by observing, at [27], that the remand period would normally be 24 hours, but could be up to four days if detention over a weekend is involved. The four days is thus implicitly identified by the delegate’s reference to a person being held until the next court sitting: if the detention commenced on a Friday, the next court sitting would be on the following Monday, being the fourth day.

45    There is no substance to this sub-ground of appeal. There was a proper and substantial basis for the Authority to conclude that, if the appellant was charged upon his return to Sri Lanka with an offence of general application of leaving Sri Lanka illegally, his detention pending bail could extend to up to four days, in substance, upon the basis that an arrest might take place on a Friday.

Fourth particular: extortion claims

46    This aspect of the appellant’s case concerns the Authority’s treatment of his claim that Tamil paramilitary groups could extort money from him. At [24], the Authority concluded that this claim was speculative. The appellant says that this conclusion was unreasonable, and that the Authority should have applied the real chance test. The appellant points out that the Authority itself stated that there were credible reports that Tamil paramilitary groups are involved in criminal activities and have resorted to extortion demands to raise funds.

47    The Minister submits that this sub-ground amounts to no more than merits review of the Authority’s decision.

48    There are two answers to this sub-ground. The first is that the real chance test had no application because the Authority found that there was no reason to believe that the appellant would be the victim of extortion demands in the foreseeable future. This finding was based on the fact that, on the appellant’s own case, neither he nor any family members had been subjected to extortion demands in the past. The second answer is that this ground is, in any event, an attempt to engage this Court in impermissible merits review. It follows that this sub-ground of appeal must fail.

Conclusion

49    The primary judge did not overtly, or by omission, err in finding no jurisdictional error on the part of the Authority. The appeal must therefore be dismissed with costs.

Associate:

Dated:    7 September 2018