FEDERAL COURT OF AUSTRALIA

ELA18 v Minister for Home Affairs [2019] FCA 1482

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the new grounds in the amended notice is refused.

2.    The appeal be dismissed.

3.    The appellant to pay the costs of the first respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an appeal from an order made by the Federal Circuit Court of Australia on 4 February 2019 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 9 August 2018, which affirmed the decision of the Minister’s delegate to refuse the grant of a Safe Haven Enterprise Visa (SHEV) for which the appellant had applied on 1 September 2016: see ELA18 v Minister for Home Affairs &Anor [2019] FCCA 213.

Background

2    The appellant is a Tamil from Sri Lanka who arrived in Australia on 1 May 2013 as an unauthorised maritime arrival. The appellant made an application for a SHEV on 1 September 2016, and attended an appointment for an interview on 21 December 2016. By way of letter on 23 October 2017, the Department notified the appellant that his application was refused, and the matter was referred to the Authority for review pursuant to Part 7AA of the Migration Act 1958 (Cth) (Migration Act).

3    Subsequent to the refusal, the appellant lodged further submissions, and a further statement of his claims (dated 17 November 2017). This additional statement outlined greater detail about the appellant’s involvement with the Liberation Tigers of Tamil Eelam (LTTE), and claimed that the appellant’s involvement with the LTTE was significantly more extensive than he had previously disclosed.

4    The Authority interviewed the appellant in relation to his claims on 27 June 2018, and affirmed the initial decision of the Minister’s delegate to refuse the SHEV on 9 August 2018.

The Authority

5    The basis of the appellant’s claim in support of a protection visa are summarised in the reasons of the Authority as follows:

•    The applicant is a Tamil male who was born in Kayts, Kayts Division, Jaffna District in the Northern Province of Sri Lanka.

•    Between 2007 and 2009, the applicant was a member of the LTTE’s police force. He joined the LTTE civil administration after the LTTE attended the family home and told him if he did not join willingly they would take his younger brother. As a police constable in the LTTE’s police force he was involved in traffic control and internal security duties. As the civil conflict between the LTTE and the Sri Lankan government forces intensified he attended the battlefield and provided assistance to the front line.

•    In 2009, as the Sri Lankan Army (SLA) advanced into the Kilinochchi District and while heavy fighting was taking place the applicant escaped his LTTE duties and joined his family. In February 2009, the applicant and his family surrendered by entering a Sri Lankan government controlled area and were taken by the Sri Lankan security forces to a welfare camp.

•    In April 2009, during a search of the welfare camp the applicant’s personal details raised the suspicions of the Sri Lankan security forces and he was taken along with others to a rehabilitation centre. At the rehabilitation centre he was questioned about his level of involvement with the LTTE. He was physically and verbally assaulted and threatened that he would be killed if he did not cooperate. He admitted to being forcibly recruited and serving three months in the LTTE’s police force. Arising from his admissions, he was detained in a rehabilitation centre for one year and three months.

•    In September 2010, the applicant was released from rehabilitation. On release he was subjected to ongoing harassment, questioning, monitoring and had regular reporting requirements by the authorities. He was also told if he wanted to travel anywhere he had inform the authorities and he was not to leave his home area and/or travel overseas.

•    In April 2011, the applicant paid an agent to make arrangements for him to leave Sri Lanka. He travelled to Malaysia where he remained until May 2013 when he departed and travelled to Indonesia where he boarded the boat to Australia.

•    Since the applicant’s departure from Sri Lanka, the authorities have routinely attended his family home and questioned his family about his whereabouts. In May 2016, the applicant’s father told the authorities he was in Malaysia. The authorities asked his father for a copy of the applicant’s passport, his father told them he did not have a copy of it.

•    The applicant fears on return to Sri Lanka he will be harmed including being detained, interrogated, abducted, tortured and “arrested under the terrorism legislation” by the Sri Lankan authorities on the basis of his ethnicity, his involvement with the LTTE, past detention in a rehabilitation camp, departure in contravention of the authorities instructions not to leave his home area and/or travel overseas and his illegal departure. He also fears he will be considered an “outcast” by the Tamil community because of his past detention in a rehabilitation camp.

•    It has also been contended that on return the applicant will be harmed by the Sri Lankan authorities on return because of an actual or imputed political opinion of being pro-LTTE arising from his profile as a young Tamil man from the North, perceived and actual personal links to the LTTE including his former combat role in the final stages of the civil war and role as an LTTE police officer, his profile as a former rehabilitee and return as a failed asylum seeker.

6    Before the Authority, the appellant's representative filed various written submissions and additional documents, some of which the Authority had regard to on the basis that s 473DD of the Migration Act was satisfied and/or that the material was not "new information". The Authority also exercised its discretion under ss 473DC and 473DF of the Migration Act to "get" new information (being, country information reports), invited the appellant to give new information at an interview before it, and to accept submissions following the interview with the appellant.

7    Details of the various factual findings are referred to below in considering the grounds of appeal. Suffice to say at this stage the Authority accepted certain aspects of the appellant’s claim, but rejected others, finding one claim was “significantly embellished” to support his claims.

8    The Authority was not satisfied that the appellant would be perceived as having a significant or high level role in the LTTE or that he was the subject of ongoing attention. The Authority was not satisfied that the appellant’s time at the rehabilitation camp was suggestive of serious suspicions by the authorities or of the treatment he would receive if he were to return to Sri Lanka now. Rather, it was satisfied that the appellant could return and find employment and would not be imputed with an adverse profile. The Authority was also satisfied that the appellant would not be at any higher risk of adverse attention as a returnee, and would not otherwise face a real chance of persecution. On these bases, the Authority was not satisfied that the appellant was a person to whom Australia owes protection obligations by virtue of ss 36(2)(a) or 36(2)(aa) of the Migration Act.

9    The appellant applied for judicial review of this decision on 27 August 2018.

Federal Circuit Court

10    In the Court below the appellant filed three grounds of review, but at the hearing, on 4 February 2019, the appellant abandoned grounds 4 and 5, and indicated that only ground 3 was relied on.

11    That ground contended jurisdictional error on the part of the Authority "in the reasoning process by which it rejected the appellant's evidence and claims that the Sri Lankan authorities did not discover during his rehabilitation detention, the full duration and armed nature of his LTTE service" on the basis that the Authority's reasoning was inconsistent with country information. That ground was rejected. It is unnecessary to consider the Court’s reasoning as it is not relevant to any of the grounds the appellant now seeks to rely on.

Leave to appeal

12    Before this Court the appellant sought leave to file an amended notice of appeal pleading four appeal grounds. These grounds raise new issues not raised before the Court below.

13    In addition, the appellant sought leave to read two affidavits, being an affidavit of Christine Joy Palomo affirmed on 27 June 2019 annexing transcripts of the appellant’s protection visa interview and his interview before the authority, and an affidavit of Aminata Soriena Conteh affirmed on 2 July 2019 annexing a copy of the 2017 Department of Foreign Affairs and Trade (DFAT) Country Information Report for Sri Lanka. These affidavits contain material which was before the Authority but not before the Court below. Indeed, in the Court below, on the morning of the hearing the appellant’s solicitor expressly eschewed seeking an adjournment to obtain transcripts of the appellant’s interviews.

14    The respondent objects to the grant of leave to amend the appeal grounds, the grant of leave to appeal and the reading of the affidavits.

Affidavits

15    By failing to apply to the Court to provide further evidence at least 21 days prior to the hearing of this appeal, neither of the affidavits comply with r 36.57 of the Federal Court Rules 2011 (Cth) which requires an affidavit to state the facts on which the application relies, the grounds of appeal to which the application relates, the evidence the subject of the application and why that evidence was not adduced in the Court appealed from. Nor did the appellant, prior to the hearing of the appeal, provide any information to the respondent as to the relevance of the material annexed to the affidavits to the amended grounds of appeal. The affidavits were filed after the respondent had filed its written submissions.

16    The explanation proffered for reliance on the material in this Court when it was not relied on in the Court below, is that the grounds of appeal in this Court are different. The respondent submitted that the material was not relevant to the only ground before the Court below. The lateness of filing the affidavits was attributed to counsel having recently been briefed in the matter. However, that does not explain why the material was filed after the written submissions of the parties and why no attempt has been made to identify the relevance of that material to the respondent. The appellant proffered no explanation for his failure to provide appropriate notice to the respondent, and instead contended that this evidence should be accepted as it was “clearly evidence that was before both the delegate and the [Authority]” and that there was no demonstrated prejudice to the respondent. Nonetheless I have taken the affidavits into account in considering the proposed grounds of appeal.

Grounds

17    The amended grounds of appeal (as extracted from the appellant’s written submissions dated 20 June 2019) are as follows:

The Court below erred in failing to find that the decision of the Second Respondent was infected with jurisdictional error, in that:

a. The Second Respondent erred by failing to consider, as an integer of the Appellant’s claim, or otherwise give actual intellectual engagement to, the mental health of the Appellant.

b. The Second Respondent erred by failing to consider submissions made by the Appellant’s representative regarding the mental health of the Appellant.

c. The Second Respondent’s decision was illogical, unreasonable and/or made without intelligible justification, in view of the finding of fact it made -

Particulars

i. In finding that the Appellant had a “low-level” profile despite longer than usual rehabilitation, requirement for weekly reporting, visiting by authorities, and two subsequent periods of detention, questioning and assault,

ii. In finding that the Appellant left Sri Lanka on a genuine passport,

iii. In finding that the local authorities visited his family home after his departure on only one occasion,

iv. In finding that the Appellant was not of continuing interest to the Sri Lankan authorities.

d. The Second Respondent erred in failing to find that the Appellant had been involuntarily injected with a substance during rehabilitation, such finding being based solely on information in Country Reports that stated that similar claims had not been substantiated, or otherwise unreasonably requiring unspecified other form of corroboration.

e. The Second Respondent erred in failing to determine an integer of his claim, being that he would be an “outcast” in his community, or otherwise failed to give actual intellectual engagement to the issue.

18    In the written submissions filed by the appellant, the claims in relation to the appellant’s mental health at paragraphs (a) and (b) above, are dealt with collectively under the heading “Ground 1”. Meanwhile, the claims in (c), (d) and (e) are referred to by the appellant as “Ground 2”, “Ground 3” and “Ground 4” respectively. On this basis, I have referred to the appellants claims as grounds 1 to 4 in this decision.

19    The appellant accepts that these grounds were not raised in the Court below, and as such, leave to rely upon these new grounds of appeal is required. The relevant principles for the grant of leave are those identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, 598–599 at [46]–[48] where the Full Court said:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

20    I am conscious of the fact that cases involving asylum seekers often have particular sensitivity in relation to whether the interests of justice favour granting leave to rely on new grounds since the adverse decision may have very serious consequences for an appellant: CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [36] citing Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22].

21    The respondent submitted that leave to amend the grounds of appeal ought not to be granted on the following four bases:

(1)    There has been no explanation for the failure of the appellant to raise these points in the Court below, despite the appellant being represented and granted leave to rely on an amended application and affidavit evidence in support.

(2)    The proposed grounds would mean that this Court impermissibly “performs the trial court’s entire function”: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14], and seeks to reduce the proceedings in the Court below to “little more than a preliminary skirmish”: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7. The grant of leave would “effectively defeat the statutory scheme in relation to judicial review of decisions of the Tribunal in respect of protection visas” which allocates to this Court appellate jurisdiction only: SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 (SZWCO) at [31].

(3)    The grant of leave would be contrary to the timely and effective disposal of litigation which is a matter of significant public interest in this area of law: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62]; SZWCO at [36].

(4)    The new grounds do not demonstrate that the decision in the Court below was attended with sufficient doubt, nor do they have sufficient merit to warrant the grant of leave.

22    The appellant contended that the argument as to the merit of the grounds ought to be heard as that will be determinative of the question of the grant of leave. The appellant submitted that there was no prejudice caused to the respondent if this approach were taken. The appellant placed reliance on ARY16 v Minister for Immigration and Border Protection [2018] FCA 1768 at [24] to support an argument that a more lenient approach to the grant of leave might be taken where the new grounds emerge out of, or are connected with, the existing grounds. That may well be so. The problem for the appellant is that these new grounds do not fall within that category.

23    The fact that the appellant was represented below weighs against the grant of leave to rely upon new grounds on appeal, although leave may still be granted even where the only explanation for the failure to rely on the grounds is that their significance was not appreciated at first instance: AFZ17 v Minister for Immigration and Border Protection [2019] FCA 1035 at [21].

24    It was appropriate in this case to hear argument on the proposed grounds to ascertain whether there was merit in them, as this will be significant to resolving the issue of the grant of leave in respect to the grounds of appeal and the affidavits sought to be filed. Given the lack of notice to the respondent of the relevance of the contents of the affidavits, the respondent was offered the opportunity that if, at the end of the hearing, it had been prejudiced in the conduct of the proceeding I would grant leave to file supplementary written submissions. At the conclusion of the appeal, the respondent indicated that it did not need to take up that opportunity.

Ground 1: mental health claims

25    The appellant contended that the material before the Authority disclosed that he has mental health issues, such that he required counselling. The appellant argued that this was an issue explicitly raised as an integer of his claim, but not determined. He argued that even if not expressly raised as a claim, the appellant’s mental health arose squarely on the material before the Authority, and, consistent with NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58], it should have been considered. The appellant also argued that the representative’s submission on mental health services was not considered.

26    The appellant contended that there were three sources from which a claim concerning mental health issues arose on a clear basis. The first, was in answer to a question in a form of personal details. The question was “if you are called in for an interview, are there any factors we need to consider (such as access for a disabled person)?”. The answer written by the appellant was, “I see a mental health professional”. The second, was in the SHEV interview where the appellant was asked if he was suffering from any mental or physical health issues, to which he replied “[n]ot physically, but mentally, worries”. He was asked if he was receiving counselling or taking medication, to which he replied “[p]reviously I went for counselling but I don’t go to counselling now because I have to work”. The third, was in a submission under the heading “relocation”. In that, the appellant’s representative makes a submission about the difficulties faced by Tamil returnees, the lack of family support, resources, and difficulty in accessing basic needs such as water, food and shelter and then quotes an aspect of a DFAT report about a lack of capacity to respond to general health needs. From that, the appellant’s representative made a submission that relocation away from significant harm is unreasonable and unfeasible.

27    The respondent submitted that there was no express claim concerning mental health issues made by the appellant either before the Delegate or the Authority, nor did any such claim clearly arise on the materials, and therefore there was no error on the part of the Authority.

28    The respondent placed particular reliance on SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 (SZULW) at [80] where Thawley J endorsed as correct the comments of the Court below which were in the following terms:

As the applicant did not claim that “Sri Lankan illegal departers returning from Australia” were a particular social group, in the circumstances the Tribunal’s failure to consider whether they were did not involve error unless such a claim arose clearly from the materials before it: NABE v Minister for Immigration & Multicultural& Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1. Whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the Tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration& Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].

29    The respondent contended that none of the three purported sources in the material relied on by the appellant, considered in their proper context, support his contention. As the respondent noted, there were seven different sets of submissions put forward by the appellant’s representative, none of which has mental health as a claim.

30    The Authority is required to consider claims where they are either the subject of substantial clearly articulated argument, relying on established facts, or that clearly emerge from the materials: NABE at [55], [58].

31    In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18], when summarising relevant principles as to when a claim clearly emerges, Collier, McKerracher and Banks-Smith JJ cited the following propositions of Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68] as correct:

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37. While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38. Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

32    The respondent’s submission is correct. When the matters relied on by the appellant are considered in their proper context, it is apparent that the appellant’s mental health was not expressly part of any claim, and nor did it squarely arise on the material before the Authority. The first reference is in a procedural document which included a question relating to an interview. The second, a question asked during that interview, was about mental health and the appellant said he was no longer receiving counselling. The third was part of a general submission relating to relocation. There was no reference to the appellant’s mental health, or the availability of mental health care in Sri Lanka, even in that submission. This is to be contrasted with the detailed 4 page document which set out the basis of his claims. No submission was ever advanced, (including in the many submissions made by the appellant’s representatives), that the appellant claimed to fear harm due to “mental health issues” or due to lack of access to mental health care in Sri Lanka. Moreover, the appellant was, and remains, represented throughout the process. The Authority was entitled to assume that the claims expressly articulated by the appellant and his representative as to his feared persecution if he returned to Sri Lanka are those on which he relies: SZULW at [80].

33    The appellant has not established there is any merit in this ground.

Ground 2: legally unreasonable

34    There was some issue between the parties as to the correct approach as to the resolution of this ground.

35    Recently, the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] per Reeves, O’Callaghan and Thawley JJ, summarised the position as to whether a decision is legally unreasonable as follows:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J).

36    The Court then proceeded to give some examples. These examples included that a decision might be legally unreasonable if it: (1) is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW) at [10] per Kiefel CJ; [82] per Nettle and Gordon JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [68] per Hayne, Kiefel and Bell JJ; (2) “lacks an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ; SZVFW at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ; or (3) is plainly unjust, arbitrary, capricious or lacking in common sense: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35] per Charlesworth J with whom Flick and Perry JJ agreed at [1], [2].

37    As the High Court has observed, the test of legal unreasonableness is necessarily stringent: SZVFW at [11] per Kiefel CJ; and see [51]-[60] per Gageler J, [78]-[87] per Nettle and Gordon JJ, [131]–[135] per Edelman J.

38    To discern irrationality or illogicality more must be shown than that the decision is one upon which reasonable minds may differ: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [131], [135] per Crennan and Bell JJ, or that the Court would have exercised the discretion to grant the visa in a different way: SZVFW at [18] per Kiefel CJ, [86] per Nettle and Gordon JJ. On the other hand, “illogicality” or “irrationality” giving rise to jurisdictional error, may be made out if there is no logical connection between the evidence and the inferences drawn: SZMDS at [135] per Crennan and Bell JJ; Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] per Perram, Farrell and Thawley JJ, or if there is an irrational or illogical step in the Authority’s reasoning, at least where it can be shown that taking that faulty step, affected a material conclusion on the way to reaching a final decision: SZMDS at [132] per Crennan and Bell JJ.

39    In an appeal alleging this ground of unreasonableness the question is whether the Authority’s decision was legally unreasonable and whether the primary judge’s reasoning in this regard was correct. The Court is to decide these questions for itself rather than to defer to what the primary judge has held and require the appellant to identify some error in the primary judge’s reasoning: SZVFW at [18] per Kiefel CJ. The appellate court must determine not whether the conclusion of the primary judge was open, but whether that conclusion was, in the opinion of the appellate court, the right conclusion: SZVFW at [20] per Gageler J, [85] per Nettle and Gordon JJ, [154]-[155] per Edelman J.

40    Therefore, the Court in this appeal must approach this ground by considering whether the Authority committed a jurisdictional error by making a finding that was legally unreasonable, as described above. This is done by reference to the particulars identified in the appellant’s amended grounds of appeal.

41    I note that as this is a ground which was not argued below, there is no issue of the primary judge’s reasons.

42    The appellant’s argument in essence was that given particular findings of the Authority, two particular conclusions that the Authority reached were unreasonable or illogical. That is, the Authority’s findings that the appellant had a low level profile with the Sri Lankan government, and that the appellant had left Sri Lanka on a genuine passport.

43    The findings of fact relied on by the appellant which underpin this ground are:

(1)    the Sri Lankan government learned the full extent of the appellant’s role with the LTTE;

(2)    the appellant was detained for more than the typical period of 12 months;

(3)    the appellant was required to report to the CID officers each week;

(4)    on a number of occasions security forces attended his family home and told him he had to report as and when requested;

(5)    some rehabilitees had to report each week, and were frequently sought at their homes, while others had to report less frequently. The extent of monitoring was related to the profile of their position in the LTTE;

(6)    the security forces told the appellant that he was not allowed to leave his home and/or travel overseas;

(7)    in October 2010, the appellant attended the CID office and was detained for four days, physically assaulted and questioned about re-joining the LTTE;

(8)    in early 2011, he was again detained by the SLA, assaulted, and questioned about the whereabouts of weapons;

(9)    as a rehabilitee he was on a “watch list”;

(10)    his family, concerned about ongoing monitoring, assessment and attendance at the family home, made arrangements for him to leave Sri Lanka;

(11)    the appellant obtained a genuine passport and left Sri Lanka in April 2011;

(12)    in May 2011 the local authorities attended his home once and questioned his father; and

(13)    his treatment was typical of low level involvement with the LTTE.

44    In that context, it was contended that the two impugned findings were unreasonable, illogical or without intelligible justification.

45    First, the finding by the Authority that the appellant had low level involvement with the LTTE (extracted from the Authority’s reasons at [64]):

I have accepted that the applicant has completed one year and three months of rehabilitation and on release he was subjected to ongoing harassment, monitoring, weekly reporting requirements and his movements were restricted. The country information in the referred material and that [was] provided by the representative, indicates that this was typical for individuals who had low-level involvement with the LTTE after their release from detention, and I am not satisfied that such post-rehabilitation monitoring indicates that the authorities had serious suspicions or that it is indicative of the treatment he would receive now, particularly having regard to changed country conditions.

46    The appellant relied particularly on the factual findings summarised in subparagraphs (1) to (10) (listed above at paragraph [43]), submitting that each of those findings singularly and combined reflected a level of involvement with the LTTE greater than low level. Relevant to the argument was the Authority’s assessment in relation to the significance of each of the individual findings.

47    For example, in relation to the first two subparagraphs, that the appellant was detained for more than the typical period of 12 months, the Authority’s finding was as follows (at [32]):

I accept while detained the applicant was forced to admit he had been forcibly recruited by the LTTE to the Sri Lankan security forces; however, I find it difficult to accept that during his period of rehabilitation the Sri Lankan government did not learn the full extent of his role with the LTTE. DFAT and OCHCR have reported that administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation but that rehabilitation was typically a one year program, extended up to two years for those considered to be highly radicalised. In light of this information, I find the applicant’s explanation and evidence that arising from his admission of involvement that being for mere three months in the LTTE’s police force he was detained in a rehabilitation centre for a period of more than 12 months to be implausible.

48    The appellant contended that to be detained for fifteen months reflected that he was considered to be highly radicalised.

49    In relation to subparagraphs (3)-(5) the relevant finding of the Authority was as follows (at [34]):

I accept in September 2010, the applicant was released from rehabilitation and returned to his family in Jaffna. I accept soon after returning the Sri Lankan security forces attended his family’s home and asked for him for his phone number and told him that he was to report to the CID office each week to sign in. I accept after this visit on a number of unspecified occasions the Sri Lankan security forces also visited his family’s home and told him that he [was] required to report as and when requested. The applicant’s evidence regarding the ongoing monitoring and reporting requirements he was subjected to after he was released is plausible when considered against the country information in the 2012 Landinfo and 2014 DFAT reports which indicates that while there were no specific guidelines for rehabilitees on release, they did have to report and register in their home area with the Grame Nildari (GS) and the local military unit, the Civil Affairs Office (CAO). They were also monitored and subjected to reporting requirements. The 2012 Landinfo report indicates that the extent of the monitoring and reporting was determined by the local commanders personal decisions and different routines (home visits, reporting to camps, summoning to meetings, security bonds etc.) were implemented in different areas. Some rehabilitees had to report each week, and were frequently sought out at their homes, while others had to report less frequently. The extent of the monitoring was related to the profile of their position in the LTTE.

50    The appellant contended that, given the level of reporting and monitoring he was subject to, the inference is that he was considered to be of a high profile.

51    In relation to subparagraph (6) the finding was as follows (at [38]):

I accept that after the applicant was released from rehabilitation he was told by the Sri Lankan security forces that if he wanted to travel anywhere he had to inform the Sri Lankan security forces of why and where he was going and for how long. I also accept that the Sri Lankan security forces told him that he was not allowed to leave his home area and/or travel overseas. The applicant’s evidence has been generally consistent throughout his interactions with the Department and is plausible when considered with the country information in the DFAT and 2012 landinfo reports that there were no specific guidelines for rehabilities on release and different decisions and routines were implemented in different areas.

52    In relation to subparagraphs (7), (8) and (10) the findings were as follows (at [39] to [40]):

I accept that in October 2010, the applicant was advised to attend the CID office. I accept when he arrived late to report he was physically assaulted. I accept he was questioned about his involvement with the LTTE and whether he had re-joined. I accept he was held for four days before being released after he agreed to clean the CID offices. I accept while detained he was not provided with sufficient food. I accept at [the] beginning of 2011 he was detained again by the SLA and physically assaulted and questioned about his involvement with the LTTE and whether he knew where any weapons were hidden. The applicant’s evidence aligns with the country information in the DFAT and UK Home Office reports indicating that the arbitrary arrest and detention of individuals who were suspected of being involved with the LTTE continued after the civil conflict ended.

I accept that because of the ongoing harassment and monitoring and attendance at the family home by the Sri Lankan security forces including the CID and the SLA, the applicant’s family became concerned for their safety and arrangements were made for the applicant to leave Sri Lanka.

53    The appellant contended that the findings about his arrest referred to above were not taken into account when the Authority reached its conclusion as to him having low level involvement with the LTTE.

54    As a result of all those findings, the appellant contended that the finding in paragraph [52] above, is illogical having regard to the specific country information regarding the length of detention, the frequency of monitoring and harassment which is attributed to people with high profiles, the ability to leave the country, that arbitrary detention is common for people with ongoing suspicions of being part of the LTTE, and that people who were suspected of involvement with weapons are high-profile people. In addition, the appellant submits that the later arrests, referred to above were not taken into account.

55    Before addressing that argument it is appropriate to consider the findings in relation to the second complaint, because the appellant contended that while they are separate, the second complaint has a relevance to the first complaint.

56    Second, the finding that the passport the appellant obtained to leave the country was a genuine one.

57    The findings in relation to the passport were as follows (at [44] to [46] and [49] to [52]):

I accept an agent assisted the applicant to obtain a passport however I do not accept the passport obtained by the agent was forged, rather I am satisfied the passport the applicant used to depart Sri Lanka in April 2011 and which displayed his own identity details was a genuine Sri Lankan passport. The applicant’s evidence is that he provided his photograph to the agent and that his photograph, name and date of birth were recorded in the passport. I accept that DFAT has consistently reported that fraud is prevalent in Sri Lanka however the UK Home Office report specifically indicates that at the time of the applicant’s departure it was passports with another person’s identity which could be easily obtained and that forged Sri Lankan passports were rare; and I consider this suggests that as the passport did not display another person’s identity but rather the applicant’s own the passport was not forged. I have considered the 2017 US Department of State report referred to by the representative however I note it is silent on the type of documents forged.

I do not accept that the applicant paid a bribe to an immigration official when exiting the airport in April 2011. The applicant made no mention of bribing an immigration official when describing how he exited Sri Lanka at the entry interview. Furthermore, the UK Home Office reported that while rehabilitees’ names are held on a watch list the rehabilitation certificates can be shown to immigration officers at the airport to prove that the individual had been rehabilitated. Citing a meeting with the Bureau of the Commissioner General of Rehabilitation, the report also said that the rehabilitation certificate allows individuals freedom of movement and that the Bureau sometimes received phone calls from other departments requesting verification on a person, especially if they are travelling abroad.

I accept as a rehabilitee the applicant’s name was held on a watch list however the applicant’s evidence is at the time of his departure from Sri Lanka he was in possession of his “rehabilitation documents” and in light of the country information, I am not satisfied he would need to pay a bribe to an immigration official and/or was prevented from leaving Sri Lanka because his name was held on a watch list.

…

I accept that in May 2011, after the applicant failed to report the local authorities attended his family home and questioned his father about his whereabouts. The applicant’s evidence regarding this aspect of his claim has been consistent throughout his interviews with the Department and also plausible given the fact given that the applicant had weekly reporting requirements at the time of his departure in April 2011.

At the entry interview, the applicant made mention of the visit in May 2011 but he made no mention of the authorities regularly visiting his family home and seeking his whereabouts after this. At least two years passed between the visit in May 2011 and the entry interview in July 2013, and I am satisfied that had the authorities continuously sought his whereabouts since his departure from Sri Lanka as he is now claiming he would have made reference to this, even if only briefly.

The applicant’s evidence regarding the subsequent visits by the authorities was ambiguous and unconvincing. He provided no specific dates for these visits merely referring to them having occurred “every three to six months” or “three months ago” or a “month ago”. Furthermore, other than to state that the authorities would check the individuals who had been released from rehabilitation, the applicant provided no other reason why the authorities have continued to seek his whereabouts. The absence of any detail leads me to believe the applicant is not recounting events that genuinely happened.

The country information before me indicates that visits from authorities have reduced. I have found the applicant departed legally and has not been living in Sri Lanka since April 2011, and I do not consider it plausible that for the past six years the authorities have attended his family home and sought his whereabouts, I am satisfied that he has significantly embellished this aspect of his evidence in support of his claims for protection.

58    The respondent correctly submitted that the Authority’s reasons should be read as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 per Kirby J, rather than in the piecemeal way the appellant has done. When read as a whole, with the various findings seen in their proper context, the respondent submits there is no merit in the appellant’s complaints.

59    The respondent submitted that the appellant’s argument appears to be based on the proposition that in the relevant paragraphs cited above, the Authority made findings that the appellant had high level involvement in the LTTE when, on the respondent’s submission, it did not. The respondent made submissions about the context in which those paragraphs appear, and the issue that they were directed to deciding.

60    For example, in relation to the period of detention, the respondent contended that it is clear when that paragraph is read in context, the Authority was addressing the argument whether the length of detention was consistent with the appellant’s claim that he had only told the authorities that he was involved with the LTTE for three months. The Authority rejected that claim concluding (as can be seen in the paragraph cited at [47] above), that the claim was implausible given that length of his detention. Similarly, it was submitted by the respondent, that when read in context, the findings in relation to the events after his release, in particular the monitoring and reporting (referred to above at [52]) were also directed to resolving that issue.

61    The respondent’s arguments in relation to the first impugned passage should be accepted.

62    First, as the respondent correctly submitted, the appellant’s argument is based on the proposition that the Authority found the appellant to have high level involvement with the LTTE and therefore, the finding of low level involvement and what flows from that, is said to be illogical. This approach was clear from the appellant’s submission. To take but one example: the appellant’s submission in relation to the first passage he relied on (referred to above at [48]), which related to the period of detention. The appellant submitted that the first thing to note about that passage was “that his period in rehabilitation was 15 months”. It is longer than the standard program, and on that information, he must have been considered to be highly radicalised”. He also submitted that the Authority “accepted that the country information said that those persons who were rehabilitated for more than 12 months were those considered to be highly radicalised”. The passage does not support either of those submissions.

63    In the paragraphs relied upon by the appellant, the Authority did not expressly make such a finding. The appellant’s argument therefore is dependent on an inference being drawn from the passages cited above. This involves, inter alia, a consideration of the statements made by the Authority in respect to the position in Sri Lanka in those paragraphs based on the country information and what, if any, inferences should be drawn from them, read in their proper context. Contrary to the appellant’s contention, when that is done, there is no basis to infer that the Authority found that appellant had high level involvement with the LTTE.

64    Second, as the respondent correctly submitted, the Authority’s reasons should be read as a whole. When that is done it is clear that the reasons contain a number of other factual findings, and statements in relation to the position in Sri Lanka, drawn from the country information, which are relevant.

65    For example, the below passage extracted from the Authority’s reasons at paragraphs [55] to [63]:

I accept that as a Tamil, the applicant was in the past affected by the civil conflict however the DFAT, UK Home Office and US Department of State reports indicate that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009. Following the election of the new government in 2015, Sri Lanka has experienced improvements in political rights and civil liberties. Reports of monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the North and East of the country continue, but at much lower levels than under the Rajapaksa Government. Forced registration of Tamils has ceased, and members of the Tamil community report they feel able to refuse or question the motives of monitoring or observation activities undertaken by authorities. As a consequence of the improving situation, most recently in 2018, DFAT assessed that Sri Lankans of all backgrounds generally have a low risk of experiencing official or societal discrimination, including in relation to access to education, employment or housing. Furthermore, the 2017 UK Home Office report has assessed that it was its opinion that being a person of Tamil ethnicity would not in itself warrant international protection.

Country information indicates that the focus of the current Sri Lankan government is the prevention of the potential re-emergence of the LTTE and any actions towards post-conflict Tamil separatism. In its last (2012) UNHCR protection guidelines for Sri Lanka, it was stated that at that time, being Tamil and coming from the North or the East was not, of itself, sufficient to warrant international protection, although it did identify persons who it considered at that time, may require protection.

I have had regard to the submissions provided by the applicant’s representative relating to the arbitrary arrest, detention, abduction (including white van abductions), torture, sexual abuse and killing of individuals who are perceived to be connected to or supporters of the LTTE, while the majority of the information is at least a year old pre-dating 2017, I accept there is credible evidence of serious harm being perpetrated against certain Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities in pre and post-war Sri Lanka.

However, I weigh these reports and articles against the more recent reports by the UK Home Office, US Department of State and DFAT, while not suggesting that there does not continue to be issues of concern, they suggest it is individuals who have or are perceived to have had a significant role in relation to post-conflict Tamil separatism or a renewal of hostilities within Sri Lanka who were are risk of persecution or serious harm on return. DFAT has assessed that those at highest risk of monitoring, arrest, detention or prosecution are ‘high profile’ former LTTE members, including the former leadership, and former members suspected of terrorist or serious criminal offences during the conflict or of providing weapons or explosives to the LTTE, and that close relatives of such people who remain wanted by the authorities may be monitored. The UK Home Office has assessed that unlike in the past, returnees who have a previous connection with the LTTE are able to return to their communities without suffering ill treatment. Police interest in returnees, if any, is not in any previous involvement with the LTTE, but on whether the person has committed any criminal act.

I have accepted that the applicant was involved with the LTTE as a forced recruit for a period of two years as a police officer prior to the civil conflict ending, however I found the full extent of the applicant’s involvement with the LTTE was known to the authorities. He underwent rehabilitation and post-release he was subjected to ongoing harassment, monitoring, weekly reporting requirements and his movements were restricted. I have accepted immediately after his departure at least six years ago the authorities attended his family’s home and sought his whereabouts, however I have not accept that this has continued.

At the protection visa interview, when the applicant was asked if he had a criminal record, he stated he did not but that his name was on a “list of terrorists”. I have accepted that as a rehabilitee his name is held on a watch list however the UK Home Office reports that all rehabilitees names are held on the watch list, and I am not satisfied he would be perceived to have heightened association or a high level profile with the LTTE on this basis. He has not claimed to have committed any terrorist or criminal acts or provided weapons or explosives to the LTTE or been involved in any Tamil separatist activities since the civil conflict ended. He did not have, and nor do I accept he would be perceived to have had a significant or a high level role in the LTTE.

Since the end of the conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former members of the LTTE. DFAT reported that since the end of the conflict over 12,000 LTTE members have been arrested and sent to rehabilitation centres. While modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system the Sri Lankan government has said that re-arrests of LTTE members released from rehabilitation are generally due to additional information about involvement in acts of terrorism. DFAT states that despite the high level of monitoring of those released from rehabilitation centres, relatively few arrests have occurred.

The 2017 UK Home Office report further indicates that the previously extensive rehabilitation programme is winding down, with only one rehabilitation centre remaining open, with less than two dozen residents (in 2016), and with indications that the programme would come to an end once the last of the resident ex-LTTE combatants had completed their one year programme. It states that while the authorities monitor former rehabilitees closely, and there may be restrictions on movement and reporting conditions imposed, the UK Home Office assessment was that post-rehabilitation monitoring alone did not amount to persecution.

The Special Rapporteur reported that although the number of arrests under the Prevention of Terrorism Act (PTA) was falling, the law was still being used and that the use of torture remains, endemic and systematic for those arrested and detained. It also reported that former detainees under the PTA including former rehabilitees alleged that they still faced regular security checks and questioning.22 DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA; however DFAT cannot verify this claim.

66    Those paragraphs immediately precede the first impugned conclusion referred to above (at [45]).

67    Third, in addition to the paragraphs of the reasons relied on by the appellant, he also relies on parts of the country information before the Authority to support his argument. However, as with the reasons, only particular parts of the country information were relied on. As is apparent from the paragraphs recited above, the country information report describes what is meant by high level involvement with the LTTE. It is clear from the factual findings that the appellant’s involvement does not fit that description.

68    The only part of that description engaged with by the appellant was a reliance on the fact that he was asked whether he knew where weapons were, which was said to satisfy the “supplying weapons” criteria. However, that was based on questioning which occurred on one occasion when he was late to report to the authorities.

69    Fourth, as it is apparent from the Authority’s reference to low level, it was referring to the country information and information provided to it by the appellant’s representative. Notably, the appellant did not address what was described as “low level involvement” in the country and like information provided by his representatives. Nor did the appellant suggest, by reference to that information, that the factual conclusion reached by the Authority was incorrect. Rather, the appellant relied on selected statements by the Authority, and drew the conclusion that those were findings of high level involvement, when they were not. The appellant’s submission is based on a false factual premise.

70    The findings were not unreasonable, irrational or illogical.

71    The respondent’s submission in relation to the second passage (relating to the appellant obtaining a genuine passport) also is correct. The submission as to the need for the passages complained of to be read in their proper context, applies equally to this passage.

72    The appellant’s submission focussed on what he said were the documents necessarily required to obtain a passport according to the country information before the Authority. The appellant’s contention was that as the appellant had not provided all of the necessary documents to the agent who obtained the passport on his behalf, the Authority’s finding, that the appellant’s passport was not forged, was unreasonable. The appellant also contended the finding was unreasonable because if the passport was not a forgery, the Sri Lankan authorities would have known he had left the country and therefore, would not have visited his family to inquire as to his whereabouts.

73    However, as the respondent pointed out, the passages complained of were addressing the claim that the passport was a photo-substituted passport, where a photograph is replaced on another’s passport. The Authority dismissed that claim on the basis of the appellant’s evidence that his passport had his own name, date of birth and photograph. It was not a forged in the manner described. Moreover, the Authority held that the appellant left Sri Lanka under his own identity. As the Authority observes, the country information stated that rehabilitees could depart, even though their names are on a watch list, by showing their rehabilitation certificate.

74    The fact that the authorities visited his home once, perhaps twice, in six years does not render the Authority’s findings in relation to the passport unreasonable or illogical. Such visits are not necessarily inconsistent with the findings made. Indeed, on the appellant’s evidence he left the country under his own identity.

75    The appellant has not established that the findings in either of the impugned passages were unreasonable, irrational or illogical.

76    The remaining particulars in this ground were not pressed by the appellant.

Ground 3: rejection of the claim of injection

77    The appellant’s submission was that he claimed that while he was detained, he was injected with a substance, and that others who had been similarly injected had died. He contended that this claim related to an extreme form of torture. The appellant submitted that the Authority’s rejection of that claim (on the basis that similar claims had not been substantiated) was illogical and demonstrated that the Authority had not engaged with the issue. The appellant contended that the rejection of the evidence was not on the basis of credibility because that is not expressly stated in the Authority’s reasons. However, the appellant’s submission really went further than that, because it was said that the conclusion reached in relation to the injection claim could not be on the basis of credit when, as he contended, when the Authority’s decision is read as a whole, his credit was “overwhelmingly intact”.

78    However, as the respondent submitted, the basis of the claim appears to be in the protection visa interview where the appellant said that “when we were in the rehab camp…we were vaccinated against certain diseases. I was always fearful with those vaccinations. But recently it’s come to be known that some of the people who were vaccinated have died”. The appellant went on to say “but with regard to the vaccinations I got in the past, I’m not concerned about that now here because I’ve been examined by Australian doctors and I have been vaccinated against certain diseases”. No issue was taken by the appellant as to the respondent’s submission that that appeared to be the only reference to injection in the evidence.

79    Given the passage in the country information relied on by the Authority in this context, the impugned paragraph appears to be addressing a toxic substance as opposed to a vaccination.

80    Taken at its highest, the Authority was faced with a bare claim where, as clear from the appellant’s answers in the interview, he described it as vaccinations and that he understood now, that is what actually occurred. It was reasonable for the Authority to rely on the country information as it did. It is a question for the Authority what weight it attaches to such information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and [13] per Gray, Tamberlin and Lander JJ. The Authority engaged with the issue.

81    Moreover, the appellant’s submission that his credit was overwhelmingly intact does not take into account the substantial findings where his claims, or aspects thereof, were rejected by the Authority.

82    This ground has no merit.

Ground 4: failure to determine the claim of being an “outcast”

83    The appellant’s claim that he is an outcast appears to be in his original statement in his protection visa claim, “the Tamil community will outcast us because we were in a rehabilitation camp. I cannot live anywhere in Sri Lanka”. In oral submission, the appellant expanded on that and made an argument based on his mental health and how that affected the issue of being an outcast. That later submission was not part of the appellant’s written submission and was not part of his claim in this regard.

84    The Authority expressly recognised the claim and addressed it, referring to “social stigma”. While the appellant complained that that phrase is not defined by the Authority, the plain reading of its reasons is that it is addressing the matters raised as being an outcast.

85    The Authority addressed these claims at paragraphs [75] to [77] and [83] to [85] of its decision, as extracted below:

In its most recent report, DFAT reported that between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil. In 2017, the Sri Lankan Prime Minister publicly stated that failed asylum seekers from Australia would be welcome back to Sri Lanka. However, DFAT has also reported that apart from this positive government sentiment, failed asylum seekers, may face practical difficulties on return. Failed asylum seekers receive limited reintegration assistance and many returnees have difficulty finding suitable employment and reliable housing on return. However, DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties they may face. DFAT also notes that some failed asylum seekers reported social stigma from their communities upon return.

Furthermore, while the Sri Lankan government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the CID to failed asylum seekers in the North as recently as 2017. DFAT assesses that this surveillance of returnees contributes to a sense of mistrust of returnees within the community. However, in interviews with returnees conducted by UNHCR in 2016 only 0.3 per cent indicated they had any security concerns following their return. UK Home Office reported that individuals on a watch list may be monitored.

I accept that the applicant would return to the North of Sri Lanka as a rehabilitee whose name is on a watch list and failed asylum seeker and that as such the applicant may be the subject of some monitoring by the Sri Lankan authorities for a period and social stigma from his community; however I am not satisfied that such matters including the employment challenges he may face as a rehabilitee amounts to serious harm.

…

I accept that the applicant as a rehabilitee whose name is held on a watch list and returning failed asylum seeker in the North he may be monitored by the authorities for a period and may face some social stigma. The evidence does not suggest that the applicant will suffer the death penalty, arbitrary deprivation of life, or torture as a consequence of being a returnee. I am not satisfied that any monitoring and social stigma the applicant may face amounts to pain or suffering that is cruel or inhuman in nature, severe pain or suffering, whether physical or mental, or extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied there is a real risk of significant harm on this basis.

I accept that as a former rehabilitee the applicant may face some difficulties in finding employment on return, however I am not satisfied that this constitutes significant harm as defined in the Act. It does not amount to the death penalty, arbitrary deprivation of life, or torture. It does not constitute pain or suffering that is cruel or inhuman in nature, severe pain or suffering, whether physical or mental, or extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied there is a real risk of significant harm on this basis.

Furthermore, having regard to the evidence as a whole, I am also not satisfied that the applicant being detained at the airport for processing and questioned or monitoring by the authorities or facing some social stigma or difficulties finding employment on return amounts to significant harm.

86    As the respondent submitted, those passages ought not to be read narrowly. Contrary to the appellant’s contention the Authority has engaged with the claim made. Therefore, this ground is not established.

Conclusion

87    Leave to rely on the new grounds in the amended notice of appeal is refused. The appeal is dismissed with costs.

Associate:

Dated:    10 September 2019