FEDERAL COURT OF AUSTRALIA
QUD 734 of 2018
Date of judgment:
MIGRATION – consideration of an application for leave to extend time to file a proposed notice of appeal – consideration of 10 proposed grounds of appeal – consideration of new grounds not raised before the primary judge seeking to assert jurisdictional error on the part of the Immigration Assessment Authority
Migration Act 1958 (Cth), ss 5J, 36(2)(a), 36(2)(aa), 36(2A), 473CA, 473CB, 473CC, 473DA, 473DC, 473DD, 473DE
Migration Regulations 1994 (Cth), Reg 4.41
CAP17 v Minister for Immigration and Anor  FCCA 1953
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nichols v Singleton Council (No 2)  NSWSC 1517
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
6 February 2019
Date of last submissions:
6 February 2019
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Counsel for the First Respondent:
Mr B McGlade
Solicitor for the First Respondent:
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The applicant pay the costs of the first respondent of and incidental to the application to be taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 These proceedings are concerned with an application for an extension of time to appeal from the orders and judgment of the Federal Circuit Court of Australia given by Judge Jarrett on 19 July 2018: CAP17 v Minister for Immigration and Anor  FCCA 1953.
2 The application was filed on 11 October 2018, 64 days out of time. The application ought to have been filed by 8 August 2018 in conformity with the Federal Court Rules 2011 (Cth): r 36.03.
3 In considering such an application, the Court takes into account factors including the length of the delay in filing the application; whether there is an acceptable explanation given for the delay; whether the respondent will suffer prejudice should an extension of time be granted; and whether the merits of the proposed grounds of appeal the applicant seeks to agitate should leave be given, warrant review of the decision by an Appeal Court.
4 The applicant relies upon an affidavit in support of the application affirmed on 8 October 2018. The applicant gives evidence that he was not notified by his lawyer of the delivery of the orders and reasons for judgment by Judge Jarrett on 19 July 2018. It seems that the applicant’s lawyer received delivery of the judgment and orders by email from the Court. However, the applicant’s lawyer was on leave on 19 July 2018 and returned during the first week of October 2018. It seems that the applicant’s lawyer did not check his emails and was not aware of the email from the Court. The applicant filed his application promptly upon learning of the judgment. The Minister contends that 64 days is not an insignificant period and although the problem arose due to the absence of the applicant’s lawyer, that circumstance ought not be an answer as the lawyer, in effect, is standing in the shoes of the applicant.
5 The Minister accepts that he would suffer no prejudice were an extension of time granted.
6 Although the 64 day period is significant and explaining the failure to file the application within time due to the conduct of a lawyer acting on behalf of a party is generally not a sufficient explanation, I nevertheless propose to decide the present application for leave to extend time on the footing of whether there is anything identified in the grounds of appeal the applicant seeks to agitate on appeal which raises a seriously arguable question which warrants examination by way of appeal.
7 As to that matter, I note two threshold matters.
8 First, the applicant seeks to agitate 10 grounds of appeal. However, grounds 3, 4, 5, 6, 7, 8, 9 and 10(b) of the proposed grounds were not raised before Judge Jarrett as a basis for calling into question the decision of the Immigration Assessment Authority (the “IAA”) on grounds of jurisdictional error. They are new grounds. Leave is required to rely upon the grounds especially when an applicant is seeking to identify contended grounds of jurisdictional error on the part of administrative decision-maker which could have been raised at first instance but were not; no explanation is given for the failure to raise grounds 3-9 and 10(b); and, had the grounds been raised at first instance, it may be that one or more of the grounds might have been met by the calling of evidence.
9 Second, in ground 9 of the proposed grounds, there is a reference to “Judge Driver” having failed to find that the IAA denied the applicant procedural fairness. The primary judge, of course, was Judge Jarrett. It may be that some of the proposed new grounds relate to a consideration by someone of a decision by Judge Driver in another matter.
10 In any event, I propose to examine each of the proposed grounds of appeal on the assumption that it would be open to the applicant to rely upon each ground. The question then is whether any one of the 10 grounds of proposed appeal give rise to a seriously arguable question of jurisdictional error on the part of the IAA which would warrant consideration on appeal.
11 I now turn to that question.
12 The applicant is a national of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 21 October 2012. On 19 May 2016, he lodged an application for a Safe Haven Enterprise visa (subclass 790) (a “Safe Haven visa”). The application was refused by the Minister’s delegate on 20 September 2016. That decision was referred to the IAA on 26 September 2016 under the provisions of the Migration Act 1958 (Cth) (the “Act”): ss 473CA, 473CB, 473CC. On 7 April 2017, the IAA affirmed the delegate’s decision. The applicant’s application for the grant of the constitutional writs on the ground of jurisdictional error on the part of the IAA was dismissed, as mentioned, on 19 July 2018 by Judge Jarrett.
13 In order to understand the grounds of contended error on the part of Judge Jarrett (as to grounds 1 and 2 and 10(a)) and the proposed new grounds 3-9 and 10(b), it is necessary to examine the claims made before the IAA, the findings concerning the underlying factual narrative and the conclusions reached by the IAA on the various claims.
14 The applicant’s claims were these:
(1) The applicant’s father was interrogated, shot and killed, by members of the Sri Lankan army (the “army”) because members of the army suspected that the applicant’s father was involved with the Liberation Tigers of Tamil Eelam (“LTTE”).
(2) The applicant’s father’s brother and sister were involved with the LTTE.
(3) The applicant’s sister, described as “S”, was a member of the LTTE. She left the movement in 2007. However, the LTTE came to the applicant’s home looking for her a number of times and on one occasion in 2008, the applicant was taken by the LTTE to an abandoned house. He was there interrogated about his sister. He was asked to join the LTTE. The applicant was scared that the Criminal Investigation Department (“CID”) would suspect that his family was affiliated with the LTTE. As a result, the applicant left Sri Lanka, went to Qatar and lived there until the end of the civil war.
(4) The applicant’s grandfather was a member of the LTTE. He died in custody on 6 August 2012. The applicant contended that there was evidence that his grandfather had been beaten. The applicant claimed that his grandfather’s death, and stories about him calling him a hero, were published on social media sites.
(5) The applicant claimed that he was working at an internet café at the time the stories about his grandfather were published. The CID came to the café and interrogated him because they suspected he had published the stories about his grandfather. The CID accused him of trying to revive the LTTE. A few days later, someone from the CID telephoned the applicant and threatened to kill him.
(6) The applicant left his village to stay with a friend for a few weeks until his mother made arrangements for him to stay with the Local Member of Parliament, the leader of the Tamil National Alliance (“TNA”).
(7) During the election campaign, the applicant lived with the MP and worked on his campaign. Supporters of the Tamil Makkal Viduthalai Pulikal (“TMVP”) contacted the applicant’s mother and told her that if the TMVP lost the election she would lose her son. The TMVP contacted the applicant’s mother on a number of occasions threatening to kill the applicant if he continued working for the TNA.
(8) The problems escalated after the TMVP lost the election in September. The applicant then knew that he had to leave.
(9) The CID were looking for him using a photograph. The applicant believed that he could not leave the country using the airport. After the applicant left, the CID came to the family home looking for him.
15 In relation to these claims, the applicant sought protection on the footing that he holds a well-founded fear of persecution on the ground of his sister’s former affiliation with the LTTE; reasons of perceived political affiliation with the TNA; reasons of imputed profile on his return to Sri Lanka should he again decide to involve himself in politics and campaign for the TNA; by reason of being suspected as a Tamil supporter/sympathiser by reason of the factual matters the subject of his claims; and by reason of his circumstances as a person who illegally departed Sri Lanka and is returning as a person who had sought asylum. He also sought protection on the footing that he is a person in respect of whom the Minister ought to be satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purposes of the Act, having regard to his claims: s 36(2)(a) and s 36(2)(aa) of the Act.
16 As to these claims, the IAA accepted that the applicant’s father died as a result of having been shot. The IAA accepted that although there was no evidence before the IAA that the applicant’s father had been interrogated about the LTTE or that the applicant’s father’s brother and sister were in the LTTE (other than the evidence of the applicant), the IAA accepted that these claims were plausible. It also noted that the applicant had not made any “specific claims” that related to his father or his father’s sister and brother and their involvement in the LTTE. In particular, the IAA noted that the applicant had not claimed that he, or any other member of his family, had been the subject of interest from the authorities (in the sense of being questioned, monitored or mistreated) because of the particular family connection of his father and his father’s brother and sister with the LTTE. The IAA was satisfied that the interrogation and death of the applicant’s father, and his aunt’s and uncle’s involvement in the LTTE, had not had any repercussions for the applicant and that there was no risk of harm to the applicant on return to Sri Lanka for that reason: IAA, para 21.
17 The IAA then considered the claims in relation to the applicant’s sister, “S”. The IAA observes that the applicant was able to provide “very little information about his sister, S, and her role in the LTTE”. He was unable to state “when she joined, what she did, or why she left”. The IAA decision-maker found the applicant’s evidence at interview “confusing and frequently contradictory”. The decision-maker then explained aspects of that observation. The decision-maker notes that the applicant stated that “S” left the LTTE in 2007 and that his sister “K” was in France at the time. His sister “S” was in a hostel and knew a Catholic Priest who arranged for her to go to UNICEF. The applicant was not sure how long she stayed there but he thinks she returned home in 2009. The applicant then said that it was his sister “K” who knew the Priest and who found “S” the place to live. The IAA notes that the applicant said that the LTTE came looking for sister “S” at home. The applicant said that his brothers were already in Qatar when the LTTE came looking for sister “S” and the brothers arranged for the applicant to go to Qatar. The IAA notes that when the Minister’s delegate sought clarification of these matters, the applicant told the delegate that sister “K” was not in France at the time sister “S” left the LTTE. When the delegate asked if sister “K” had experienced problems with the LTTE, the applicant said yes and that was why she had left for France in “maybe 2008”: IAA, para 22.
18 As to the abduction, the applicant was asked about what happened when he was taken by the LTTE. He said that it had occurred about three months before he left for Qatar. He said that he and others, about five in all, had been taken. He said that he had been kept longer than the others because he had more siblings to join the LTTE than the others. The IAA notes that when the delegate put to the applicant that in his written claims he had said that the LTTE interrogated him about his sister’s whereabouts, he agreed that that had happened. The IAA notes that when the applicant was asked if he was alone when he was taken, he said that he was not taken from home but was taken when on the road with friends. The IAA notes that when the delegate put to the applicant that earlier in the interview he had said that he was at home when he was taken, he said that he sometimes gets confused and cannot remember exactly what happened. The applicant said that he was released on the day that he was taken when his mother came and pleaded for his release. The IAA notes that when the delegate put to the applicant that in his written claims he had said that it was in the following day that he was released, he had responded that he was taken at night and released on the same night. He said that the LTTE did not contact him again although he had heard that the LTTE was looking for him. He said that he did not go out on the road where he might meet LTTE members and shortly after that, his brothers arranged a visa for him to go to Qatar. He left in April 2008: IAA, para 23.
19 At para 24, the IAA makes observations about the LTTE’s “one recruit per family policy”. It refers to the role of UNICEF and its role in seeking to deal with the issue of child soldiers in Sri Lanka.
20 Having considered all of these matters, the IAA said this at para 25:
25. I am not however, persuaded that the applicant’s sister, S, was a member of the LTTE. Even if I accept that he was mistaken that it was UNICEF who sheltered his sister and that it was instead one of their humanitarian partners in the east, the evidence he gave at [the Safe Haven interview] lacked detail and he failed to mention until reminded of it by the delegate, a key aspect of his claims – that one of the reasons he was abducted was because his sister had left the LTTE and they interrogated him about her. More significantly, the applicant claimed that after she left in 2007, the LTTE came to the house looking for her and then targeted him in 2008. Country information is that the [army] captured the last eastern base of the LTTE [a particular area nominated in the IAA’s decision] in July 2007 which ended LTTE control of the region. When the delegate put this to the applicant he stated that the LTTE had always been living there and taking control of it but that the Government wouldn’t release the truth.
21 As to the question of LTTE control of the nominated eastern area, the IAA did not accept the applicant’s explanation about the LTTE’s continuing control. The IAA referred to country information that the army had taken control of the relevant area in July 2007 (referencing working papers, 1 November 2014 of the Centre on Conflict, Development and Peacebuilding (“CCDP”) – Graduate Institute of International and Development Studies, entitled “An Institutional History of the [LTTE]”).
22 Apart from these matters, the IAA noted this matter at para 27 in relation to the claim related to “S”:
27. There is a further aspect to [the applicant’s] evidence that leads to me to reject his claim that S was forcibly recruited to the LTTE. The applicant referred in his arrival interview on 8 January 2013 to his grandfather’s involvement with the LTTE but did not refer to his sister’s forced recruitment. When the delegate put to him that in his arrival interview, in response to the question of whether any member of his family had been involved with any political organisation he mentioned only Mr Y [the leader of the TNA and the TNA] not his sister’s membership of the LTTE, the applicant stated that the way they asked the question meant that he was unable to say very much. I have listened to the recording of that interview and after initially asking the question and being told he and his family supported the TNA, the applicant was asked a number of questions to clarify the type and extent of his and his family’s political involvement including whether they were also actively involved or were just supporters. In my view, the applicant had more than adequate opportunity to raise any further political involvement of his family and he failed to do so. …
23 The IAA did not consider it plausible that the applicant would not, during the interview, refer to his own kidnapping at the hands of the LTTE because of his sister’s role in the LTTE. In the result, the IAA observed at para 27 that “[t]aking all of the above into account, I do not accept that his sister, S, was a member of the LTTE or that the applicant was himself detained in 2008 by the LTTE and was threatened by them that he would be apprehended again and that this was the reason he left to work in Qatar. I find the applicant has fabricated this claim”.
24 In relation to the applicant’s sister described as “K”, the IAA said this at para 28:
28. In relation to his claim that K had problems with the LTTE and that’s why she left for France in approximately 2008, his [Safe Haven visa] interview was the first time the applicant made this claim. He did not refer in his written statement to any issues K had with the LTTE and other than the passing reference in his interview to her having problems which caused her to leave, [the applicant] did not press this claim at interview or provide evidence in support. I am not satisfied that the applicant’s sister, K, had problems with the LTTE which caused her to leave Sri Lanka.
25 As to the matters in relation to the applicant’s grandfather’s death; the claim that his grandfather’s death was published on the internet, and that, as a result, the applicant was visited by the CID and questioned about it, the IAA notes that this matter was first raised in the arrival interview on 8 January 2013. The IAA notes that at the interview the applicant was unable to provide much detail about his grandfather; how he joined the LTTE; what he did with or for the LTTE; when his grandfather was arrested and related matters. Nevertheless, the IAA observed that it did not place much weight on these gaps in the applicant’s knowledge about his grandfather as the evidence was that the family did not want to get involved and did not keep in touch with him. The IAA notes that the family only came to know anything about him after his death. The IAA, at para 29, says this:
29. Accordingly, I consider [the applicant’s] knowledge of his grandfather and his involvement with the LTTE commensurate with the lack of relationship he and the rest of the family had with him. It is also consistent with his written statement that he, himself, lived peacefully, notwithstanding his grandfather’s LTTE involvement, until his death and stories calling him a hero were published on social media.
26 At para 30, the IAA decision-maker observes that she is prepared to accept that the applicant’s grandfather was a member of the LTTE who was hailed, on his death, as a hero. The IAA also notes the applicant’s claim that his grandfather died in police custody and that his Death Certificate states he fell and broke his neck but when the family saw his body there was said to be evidence that he had been beaten. The IAA regarded that claim as inconsistent with a “Tamilwin article” provided by the applicant which says that the applicant’s grandfather died on 6 August 2012 due to ill health and that he passed away peacefully. The IAA notes at para 30 that at interview the applicant contradicted his written claim about the circumstances of his grandfather’s death and instead said that his grandfather died at home. The IAA says that, accordingly, it did not accept that the applicant’s grandfather had died in custody on 6 August 2012 after being beaten and found that the applicant’s grandfather had died at home peacefully, consistent with the article.
27 At para 31, the IAA notes the applicant’s claim that the CID came to his café around three to four days after his grandfather’s death was published. The Tamilwin article just mentioned, was published on 30 August 2012. In the Safe Haven visa interview, the applicant stated that there were another two or three articles, one of which was published on 17 August 2012. The applicant was asked to provide a translation of the article but was not able to do so. As to the visit from the CID, the applicant said that he had been visited in early September 2012. He said that he had used his grandfather’s photograph in the banner for the café and that after his grandfather’s death was publicised, the CID saw the banner, suspected that he had published the news of his grandfather’s death and came and questioned him. The applicant said that he told the CID that he did not know anything about the publication. He said that the CID told him that whenever they called he “had to come”. The applicant said that he closed the café and did not re-open it because he was scared. He went to stay at a friend’s house about 30 kilometres away. He said that his family received many phone calls from the CID “checking up” on the applicant.
28 As to these matters, the IAA at para 32, accepted that the applicant had been visited by the CID after the article about his grandfather was published and accepted that the applicant had been questioned about whether he had publicised his grandfather’s death. The IAA thought, however, that some aspects of the narrative had been “an embellishment”. The IAA agreed with the delegate that it seemed illogical that “after wholly distancing himself from his grandfather all his life, he would suddenly publicize that family association by putting his grandfather’s photograph on the banner for his internet café”.
29 At para 34, the IAA was not satisfied that after these events, the applicant experienced any further interest from the CID or Sri Lankan authorities “because of his grandfather”. The IAA restated the applicant’s claim of being scared and fearing for his life such that he went to live with a friend. At para 34, the IAA notes that in the Safe Haven visa interview, the applicant made no reference to the claim contained in his written statement that the CID accused him of trying to revive the LTTE or the subsequent phone call in which they threatened to kill him.
30 At para 35, the IAA observed that there was a further difficulty with the applicant’s evidence about what happened after the visit by the CID which caused the IAA to doubt that the applicant was sufficiently frightened that he chose to stay with a friend and then with the MP, Mr Y. The IAA notes that the timeframe the applicant gave at interview for these events was not consistent with his written claims and the impression of the IAA decision-maker was that the applicant was “generally vague and undetailed” about these matters. In the written statement, the applicant said that he stayed with his friend for a few weeks. In the interview, he said that he could not remember exactly how long he stayed with the friend. The IAA notes that the delegate put to him that his evidence regarding the time when the CID visited him at the café was early September. The applicant then agreed that it was only a matter of a few days that he had lived with his friend before he then went to live with Mr Y.
31 At para 36, the IAA notes that the applicant provided two letters from Mr Y of 26 November 2012 and 18 August 2013 confirming that the applicant had worked for the TNA. The IAA notes that these letters refer to a number of incidents which are either inconsistent with the applicant’s evidence (such as his grandfather’s death in prison) or which make statements about events which form no part of the applicant’s claims. The letter of 26 November 2012 states that after the applicant closed his shop, the applicant stayed at home. The IAA notes that the letter does not say that the applicant stayed with a TNA MP in the nominated place for a period preceding the September 2012 election.
32 In the result, the IAA says this at para 37:
37. Taking all of the evidence into consideration, I find that after questioning the applicant at his internet café, the CID had no further interest in him and I do not accept that he was required to report to them if they called as he claimed in his [Safe Haven visa] interview or that the CID called him and/or members of his family on the telephone to ascertain his whereabouts or threaten him.
33 At para 38, the IAA says this:
38. Nor am I satisfied that the applicant went to stay with a friend after the visit by the CID and afterwards, that he sought the protection of the MP and lived with him for a period in September 2012. The applicant’s evidence about the period for which he stayed at his friend’s home changed from his written claims to his [Safe Haven visa] interview and I do not consider it credible that the applicant would be so scared that he fled to a friend’s house but cannot remember for how many days or when it was. I am also of the view that if he had been a guest of Mr [Y] for a period of time, that fact would have been referred to in at least one of the letters provided by the MP.
34 The IAA discusses those matters further at para 38 and concludes at para 38 that it is satisfied that the applicant is not at risk of harm from the CID should he return to Sri Lanka. The IAA notes that in his interview, the applicant did not refer to his claim that the CID was looking for him by using a photograph of him such that he could not leave Sri Lanka using the airport because he was frightened he would be questioned as he departed through immigration. At para 38, the IAA says this:
38. … In view of my findings that the CID had no interest in the applicant following their visit to ascertain if he had published the material about his grandfather and his failure to press this claim at interview and provide evidence in support, I am not satisfied that the CID continued to look for the applicant using a photograph.
35 The IAA then considered the claims made by the applicant based upon a claim to a well-founded fear of persecution by reason of supporters of the TMVP having made threats to the applicant’s mother concerning the applicant. The IAA notes that the applicant could not remember how often his mother was approached but thought that it was about two or three times and that they had also telephoned her to make threats. The applicant said that he was never approached personally because he was staying with, and working with, Mr Y in Batticaloa. The IAA notes the applicant’s contention that threats were made to his mother because the TMVP knew that the applicant was living and working with Mr Y on behalf of the TNA, and therefore the TMVP did not want to make direct contact with the applicant. As to the claim that the applicant worked for the TNA in parliamentary elections in 2012, the applicant was asked to describe what he did for the campaign. The applicant said that he distributed notices and provided other basic support for the MP (Mr Y), and the TNA’s campaign.
36 At para 41, the IAA observes that there is information from credible sources that in the lead-up to the elections on 8 September 2012, the TNA and TMVP were engaged in incidents of violence and intimidation. Having discussed the factual background in some detail, the IAA observes that it has found that the applicant continued to live at home for the short period that he worked for the TNA in the 2012 elections. The IAA considered it not credible that the applicant was never approached but that his mother was threatened by the TMVP because of the applicant’s work for the TNA and Mr Y. The IAA did not accept that supporters of the TMVP threatened the applicant’s mother on more than one occasion to the effect that harm would come to the applicant if he continued to work for the TNA.
37 At para 42, the IAA notes the changes in Sri Lanka and the observations of the EU Election Observation Mission as to those changes.
38 At para 43, the IAA says this:
43. Taking into consideration the applicant’s relatively minor work for the TNA, the amount of time that has passed since the incidents relied on, the considerably changed political environment in Sri Lanka and the country information referred to, I am not satisfied there is a real chance that the applicant would face harm, including serious harm, on the basis of his relatively minor work for the TNA, or any imputed [profile] on his return to Sri Lanka now or in the reasonably foreseeable future if he again decides to involve himself in politics and campaign for the TNA.
39 The IAA then examined the claim of the applicant to hold a well-founded fear of persecution by reason of his Tamil ethnicity and imputed political opinion generally.
40 At para 44, the IAA observes that Tamils who are suspected of being a supporter/sympathiser are still facing ongoing issues with the Sri Lankan authorities and in addition, Tamils with family connections to the LTTE, have a risk profile.
41 At para 45, the IAA notes country information which suggests that there continue to be reports from credible sources of abductions, torture and police use of excessive force against Tamils perceived to support the LTTE (UK Home Office, “Sri Lanka: Tamil separatism. Version 2.0”, 19 May 2016). The IAA also notes UNHCR observations that, depending upon the circumstances of the particular case, there may be a need for protection where a person has certain real or perceived links to the LTTE, although simply originating from an area formerly controlled by the LTTE no longer gives rise to a need for protection. At para 45, the IAA says this:
45. While I have accepted that the applicant’s grandfather was a member of the LTTE and that the applicant was questioned once in 2012 about whether he had published the laudatory article about his grandfather, on my findings, the applicant did not experience any further interest from the CID or Sri Lankan authorities as a result of that family connection and nor has any other member of his family. I have rejected his claim that his sister was forcibly recruited by the LTTE in 2007 and subsequently left and based on the UNHCR’s assessment, I do not accept that his residence in an area previously held by the LTTE would lead to his being imputed as having pro-LTTE or pro-separatist views.
42 At para 46, the IAA notes that the applicant does not claim to be personally involved in any Tamil diaspora activities which would otherwise place a person at risk depending upon the person’s level of involvement and individual risk profile. At para 46, the IAA observes that having regard to the findings that the applicant was not of any interest to the authorities on the basis of his low level short term work for the TNA, the IAA did not accept that the authorities had any interest in him at the time of his departure from Sri Lanka. The IAA concludes that taking these factors into account, it is not satisfied that there is a real chance of harm to the applicant on his return to Sri Lanka on the basis of his actual or perceived links to the LTTE, his residence in a former LTTE-controlled area, or any perceived role in pro-Tamil separatist activities.
43 At para 47, the IAA notes that the applicant had submitted and sought to rely on, a report of the UN Special Rapporteur on Sri Lanka in March 2017. The applicant contended that the report clearly contradicts information in the 2017 Department of Foreign Affairs and Trade (“DFAT”) Report that the Sirisena government has prioritised human rights and reconciliation and has made significant progress. The IAA notes that the applicant’s submission also points to information from the Oakland Institute about the continued displacement of tens of thousands of people, the continuing occupation of land by the military, the failure to repeal the Prevention of Terrorism Act (“PTA”), the government’s “backdown” on its promise to include international experts in a war crimes court, and threats by the government of legal action against anyone alleging war crimes by the military.
44 At para 48, the IAA weighs that information in the context of other sources of information including a US Department of State Report of 13 April 2016 entitled “Country Reports on Human Rights Practices 2015 – Sri Lanka”. It notes the establishment of the “Office of National Unity and Reconciliation” charged with coordinating the government’s efforts towards reconciliation. It notes the reconciliation objectives. It notes a Human Rights Watch 2016 Report addressing reforms, issues of executive power and the independence of the judiciary: UK Home Office, “Country Information and Guidance, Sri Lanka: Tamil Separatism: Version 2.0”, 19 May 2016.
45 At para 49, the IAA notes the applicant’s submission that Tamils in the north and east continue to be monitored by the authorities. It notes a DFAT Report which observes that many Tamils have reported being monitored: “DFAT Country Information Report – Sri Lanka, 18 December 2015; DFAT Country Information Report – Sri Lanka, 24 January 2017”. At para 49, the IAA notes a US State Department Assessment of 2016 that the Sri Lankan government security forces regularly “surveilled or harassed members of the Tamil community especially young and middle-aged men”. The IAA notes that the Sri Lankan government has taken steps to address these grievances by replacing military governors with former diplomats, and that while such instances still occur, the monitoring and harassment of Tamils in day-to-day life has decreased significantly with armed forces personnel generally restricted to their barracks in the north and east: DFAT Country Information Report – Sri Lanka, 24 January 2017.
46 At para 51, the IAA says this:
51. I have found that the applicant is not a person of interest to the authorities and apart from the 2012 incident discussed above, the applicant has not experienced any harm, harassment, monitoring, or surveillance by the Sri Lankan authorities nor has he been subjected to any form of discrimination on the basis of his Tamil ethnicity. Taking into consideration the entirety of his personal circumstances together with the country information before me, I am not satisfied there is a real chance of serious harm to the applicant on the basis of his ethnicity if he is returned to Sri Lanka now or in the reasonably foreseeable future.
47 The IAA then considered the applicant’s claim to hold a well-founded fear of persecution by reason of his circumstance as a person illegally departing Sri Lanka and returning as a person who had sought asylum.
48 As to these matters, the IAA notes at para 53 that the applicant was a passenger on a people smuggling boat and did not use a valid Sri Lankan passport when leaving the country.
49 At para 54, the IAA notes that persons who are found to have departed Sri Lanka illegally are generally considered to have committed an offence under the Immigrants and Emigrants Act 1949 (the “I&E Act”).
50 At para 55, the IAA notes the penalties for an offence against the I&E Act including imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees. The IAA notes that in most cases a fine is imposed rather than imprisonment.
51 At para 56, the IAA notes that the applicant would be returning to Sri Lanka on temporary travel documents. As a result, the authorities would conduct an investigative process to confirm the identity of the individual. A returning person would likely be interviewed. The police would likely be contacted with various checks taking place. The IAA notes that DFAT assesses that returnees are treated according to these procedures, regardless of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport: DFAT Country Information Report – Sri Lanka, 24 January 2017.
52 At para 57, the IAA notes that in the case of illegal departees returning to Sri Lanka and charged under the I&E Act, most returnees would be subject to a process of being photographed and having their fingerprints taken. Once investigations had been completed, a charge would normally be laid before the closest Magistrates Court. The IAA notes DFAT advice that those arrested can remain in police custody at the CID airport office for up to 24 hours after arrival. If a Magistrate is not available within that period, a person charged with an offence against the I&E Act would be held at a nearby prison. The IAA notes that for illegal departees who were an ordinary passenger on a people smuggling boat, a fine is imposed which can be paid by instalment: DFAT Country Information Report – Sri Lanka, 24 January 2017.
53 At para 58, the IAA finds that on return following investigation at the airport, there is a real chance that the applicant will be charged with the offence of illegal departure, held in custody at the airport while investigations are completed, and potentially detained over a weekend pending an appearance before a Magistrate. The IAA also observes that there is no information before the IAA to suggest that the applicant was anything other than “an ordinary passenger of boat”. The IAA observes that the evidence suggests that if an illegal departee pleads guilty, they are fined and free to go.
54 At para 59, the IAA notes the submissions of the applicant that Tamils who return from abroad are placed under surveillance and that there is an extensive network of Tamil informers watching for people who return home and even if a person clears the airport, intelligence services are likely to watch someone for a few days and then pick them up. The IAA considered that submission and accepted that there are reports of Tamil asylum seekers or other returning Tamils being detained on arrival at the airport or after returning to their home, and then being mistreated and/or subjected to torture: UK Home Office, “Country Information and Guidance. Sri Lanka: Tamil Separatism. Version 2.0”, 19 May 2016. The IAA notes, however, that country information suggests that the real risk factor is whether a person has actual or perceived links to the LTTE or involvement in pro-separatist diaspora activities while abroad, rather than the person’s Tamil ethnicity or the fact that they sought asylum. The IAA notes DFAT’s advice and assessment that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act, is low and continues to reduce with relatively few allegations of torture while thousands of asylum seekers have been returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries: DFAT Country Information Report – Sri Lanka, 24 January 2017.
55 At para 60, the IAA recognises that a threat to a person’s liberty is an instance of serious harm. In making a qualitative assessment of that harm, the IAA finds, in the applicant’s case, that “even considering the possibility that he arrives on a weekend and is detained in poor conditions until he can appear before a magistrate and then until bail is granted, the period of detention will be brief, at most, a matter of days”. The IAA concludes that “this does not rise to the level of a threat to the life or liberty of the applicant or to significant physical harassment or ill treatment, or otherwise amounts to serious harm”.
56 At para 62, the IAA says this:
62. The country information indicates that being a returning asylum seeker or returnee from a western country will not itself result in harm nor does being of Tamil ethnicity. I find that the process of questioning and investigation itself does not amount to serious harm and considering the entirety of the applicant’s circumstances, I am not satisfied there is a real chance of serious harm to the applicant either during questioning at the airport or subsequently.
57 At para 63, the IAA says this:
63. Considering the applicant’s claims which I have accepted cumulatively, I am not satisfied that, given his profile and the country information considered above, there is a real chance of serious harm to the applicant if he returns to Sri Lanka, now or in the reasonably foreseeable future, whether because of his family LTTE connections, his Tamil ethnicity and imputed political opinion, his work for the TNA, his illegal departure or his returning as [a] person who has sought asylum overseas.
58 Against that background, the applicant seeks to agitate the following grounds of appeal.
59 The first ground is that the primary judge failed to hold that the IAA erred by failing to consider all the facts given by the applicant “in totality, rather than separately and individually to come to a decision”.
60 No further details are given of ground 1.
61 Moreover, there is no contention advanced that the IAA failed to consider facts put to it. The contention is that the IAA failed to consider all the facts “in totality”. There is nothing in the reasons or in the reasoning of the IAA that suggests that it did not consider the combined effect of the evidence put to it. It begins its assessment at the outset by identifying the entire sequence of factual claims and then considers aspects of all the facts relevant to each claim of a well-founded fear of persecution. This ground was relied upon by the applicant before the primary judge. The primary judge addressed the claim at  to  in these terms:
33. Further, the applicant appears to argue that, because the second respondent made individual factual findings on the way to its ultimate conclusion, that it somehow did not consider all the evidence in its “totality” when coming to such a conclusion. However, I reject that argument.
34. The second respondent’s reasons make it clear that it considered all of the evidence before it, that it was permitted to consider. It made findings about each aspect of the applicant’s claims – that was its task. As the first respondent submits, the error underpinning the applicant’s approach seems to be to assume that, because the second respondent made subsidiary findings of fact on the way to its ultimate conclusion, the second respondent did not reach its ultimate conclusion on all of the evidence before it. But, the second respondent could not take into account claims and evidence that it had expressly rejected or found to be unreliable.
35. Moreover, as the first respondent submits, the second respondent had an obligation to express all the material findings of fact that it reached in support of its decision. The second respondent’s reasons do not reveal anything unusual in the way the second respondent went about that task. Having rejected many of the applicant’s claim, there was no obligation to assess those rejected claims cumulatively with the claims accepted by the second respondent.
62 Having regard to the reasons of the IAA, there is no error demonstrated in the observations of the primary judge.
63 The fundamental matter is this. In reaching a decision about whether the IAA can be satisfied that a person holds a well-founded fear of persecution for the reasons advanced by an applicant (said to fall within s 5J(1)(a) of the Act) and whether there is a real chance that the person would suffer serious harm (falling within s 5J(1)(4)(b) or the instances at s 5J(1)(5)), the IAA must identify the claims and the facts going to the claims. It must isolate the integers going to each of the claims said to fall within s 36(2)(a) and those elements of s 5J engaged by the facts put to it. It must decide those matters of fact about which it can reach a state of satisfaction and those about which it cannot. As in the case of this decision by the IAA, each matter of asserted fact material to a claim will result in an acceptance or otherwise of those material facts by a process of consideration, evaluation and the weighing of evidence of those facts both direct and contextual. It follows that a process of making findings of fact about aspects of a claim or so-called subsidiary facts, and then relying on those conclusions drawn from the evidence overall to reach an ultimate conclusion about whether the decision-maker can be satisfied of a claim on a particular ground and whether there is a real chance of serious harm, engages all of the evidence and all of the facts going to those matters. As mentioned earlier, there is no suggestion that evidence of material facts was not assessed. Moreover, the IAA has a statutory obligation to set out its findings on “material questions of fact” and thus, the presence of material findings throughout sections of the decision does not mean that the decision-maker did not consider the facts, the evidence and the claims, overall or “in totality”.
64 The second ground is that the primary judge failed to hold that the IAA failed to give “adequate consideration” under the complementary protection provision of the Act, in assessing the applicant’s “fear of arrest, detention and torture if he is returned home”. By this second ground, the applicant contends that the “personal experiences he had undergone, associated with the country information, leads to but one conclusion that the applicant’s fear is genuine and real”. The IAA considered the applicant’s claim for protection under s 36(2)(aa) at paras 65-71. The IAA identified the integers of the section and the statutory notion of “significant harm” under s 36(2A) of the Act.
65 At para 67, the IAA sets out a summary of the factual matters the IAA had accepted. The IAA refers to its findings and its conclusions throughout the reasons about particular matters relevant to its assessment of complementary protection in all the circumstances. The IAA refers to its conclusion arising out an analysis of the evidence and the factual claims that there is not a real chance of harm to the applicant in relation to his real or perceived links to the LTTE. The IAA observes that it is not satisfied that there is a real risk of significant harm to the applicant. The IAA notes its earlier finding that there is not a real chance of harm to the applicant on the basis of his Tamil ethnicity, imputed political opinion or residence in a former LTTE controlled area. The IAA makes observations about the applicant’s role in undertaking low-level minor work for the TNA in 2012 and related matters: IAA, para 68. It deals with the position of the applicant as an illegal departee and returning asylum seeker. It recounts considerations about those matters: IAA, para 69. At para 70, the IAA observes that taking into consideration the applicant’s circumstances and his personal profile as a whole, it is not satisfied that there is a real risk of the applicant suffering significant harm now or in the reasonably foreseeable future should he be returned to Sri Lanka. At para 71, the IAA concludes that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
66 At -, the primary judge addressed essentially the same contention. The primary judge observed that this ground does nothing other than seek to assert an impermissible attempt to review the merits of the IAA’s decision: primary judge at . The ground of appeal now sought to be advanced, should leave be given, is nothing more than an emphatic disagreement by the applicant with the outcome of the consideration, evaluation and weighing of the evidence going to the integers of s 36(2)(aa) of the Act.
67 The third ground is that the primary judge should have found that the IAA fell into jurisdictional error by “misapplying” s 473DE(3)(a) of the Act in failing to give the applicant an invitation to comment on “the new information”.
68 As to the “new information”, the IAA, in its decision, addresses the circumstance that on 26 October 2016, the applicant’s representative provided a submission to the IAA which, apart from reiterating the applicant’s claims and responding to the delegate’s findings, also contained new information. The IAA addresses aspects of the “new claims” and at para 12, the IAA notes that included with the submission were 11 items of country information in the form of media reports and articles and a link to country information dated 11 February 2015 from the Immigration and Refugee Board of Canada about the treatment of suspected members or supporters of the LTTE. The documents are then listed at para 12. At para 14, the IAA observes that in accordance with s 473DC(1) of the Act, the decision-maker had obtained new information relating to the treatment of Tamils and of persons who have departed Sri Lanka illegally and sought asylum while overseas. The IAA says that it has obtained information on the current situation in Sri Lanka under the new government and on political freedoms and issues of human rights and reconciliation in Sri Lanka. It identifies the information as the most recent DFAT country report for Sri Lanka entitled “DFAT Country Information Report – Sri Lanka”, 24 January 2017, mentioned earlier in these reasons. The Report is described as the most recent assessment of the situation in Sri Lanka. The decision-maker was satisfied that exceptional circumstances existed to justify considering the “new information”. On 21 March 2017, the IAA invited the applicant to comment on aspects of the new information and on 4 April 2017, the IAA received a submission from the applicant’s representative in response to the invitation: IAA, paras 14-16.
69 As to the “new information” which consisted of country information obtained by the IAA, the reasons make it plain that this information was put to the applicant for comment and, in any event, country information is exempt from s 473DE disclosure by s 473DE(3)(a): SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at , Tracey and Foster JJ. As to the other “new information”, the applicant does not identify the “new information” about which he says he was entitled to receive an invitation for comment. In any event, to the extent that new information was provided to the IAA by the applicant, that information was exempt from further treatment by the IAA in the form of disclosure: see s 473DE(3)(c), Reg 4.41, Migration Regulations 1994 (Cth).
70 The fourth ground is that the primary judge ought to have found that the IAA “acted on the ground of legal unreasonableness in the circumstances of the applicant’s matter”. The essential proposition seems to be drawn out of two observations by the applicant in the draft notice of appeal. The first is put this way. By virtue of s 473DC(2) of the Act, although the IAA has a legislative mandate to accept new information in exceptional circumstances, it is not obliged to receive such information. The second is that, nevertheless, the exercise of that power can still be challenged on the ground of “legal unreasonableness” depending on the particular circumstances of the case. The contention seems to be that the IAA acted out of “legal unreasonableness” in deciding not to receive “new information”. The “new information” said to be “unreasonably” not received by the IAA, is not identified by the applicant. However, this ground seems to reflect a contention described by the primary judge at  of the primary reasons. At , the primary judge identifies a list of information which the applicant sought to put before the IAA. The IAA considered the submission put to it and the material and found that the information so identified was “new information”. The IAA determined that there were “no exceptional circumstances” to authorise reception and consideration of that material for the purposes of s 473DD of the Act. If the applicant seeks to attack that decision on the ground that there is no evident or intelligible justification for the decision, the applicant must identify the basis upon which it is said that there was no such evident or illegible justification for the decision that there were “no exceptional circumstances” enabling reception of the material identified by the primary judge at , if that be the contention. Otherwise, the contention is completely un-particularised and devoid of any detail.
71 The fifth ground is that the primary judge failed to find that the IAA fell into jurisdictional error “as it failed to consider the integers of the claims to complementary protection of the applicant”. The particulars of that claim are that the IAA, in its reasons addressing claims, did not cite the DFAT Country Information Report – Sri Lanka, dated 23 May 2018 and the DFAT Report of 24 January 2017 “or any other independent country information of [on] Sri Lanka” in assessing the applicant’s claims for complementary protection. The applicant says that the failure to deal with the claim by having regard to the identified information is a “constructive failure” to exercise the statutory review jurisdiction. The applicant says that the failure to refer to the reports of 24 January 2017 and 23 May 2018 gives rise to jurisdictional error which calls into question the IAA’s decision in relation to the claims based on s 36(2)(aa) of the IAA’s decision: Particulars (a)-(d), ground 5.
72 The first fundamental difficulty with this ground is that the IAA’s decision was given on 7 April 2017 and thus the DFAT Report of 23 May 2018 could not have been considered by the IAA as it did not exist. The second difficulty is that the DFAT Report of 24 January 2017 is referred to a number of times throughout the reasons for decision of the IAA. In these reasons, in the course of examining the IAA’s reasons, I have noted references by the IAA to the DFAT Report of 24 January 2017. It is true that the IAA does not refer to the 24 January 2017 Report in those paragraphs dealing with the assessment of the complementary protection claims. However, in those paragraphs, the IAA reiterates and summarises its findings on the critical factual matters determined throughout the course of the reasons and in that analytical process, the Report of 24 January 2017 is taken into account extensively. Accordingly, the Reports were not overlooked. In any event, in order to identify a ground of jurisdictional error, it would be necessary to examine the specific matters not addressed and the materiality of those matters to factual questions going to the claims made by the applicant. However, the fundamental matter is that the foundation criticism is simply not sustainable. Moreover, the Minister contends that this is an example of a ground where the Minister could have sought to adduce additional evidence to meet the contention by filing an affidavit exhibiting the Report of 24 January 2017 to answer a claim in relation to it had it been properly formulated.
73 The sixth ground is that the IAA failed to consider new information in the form of the DFAT Report of 23 May 2018.
74 It will be apparent that this ground suffers, as mentioned, from the difficulty that it would, obviously enough, have been impossible for the IAA to consider a DFAT Report of 23 May 2018 which did not exist when the IAA was making its decision.
75 The seventh ground is that the primary judge failed to hold that the IAA fell into error in relation to “the making of findings as to credit/credibility”. As to this ground, the applicant refers to the well-known observation of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at  that a finding on credibility “is the function of the primary decision-maker ‘par excellence’”, and observes, however, that a finding not based on any evidence and thus, without any “evident or intelligible justification” (quoting the well-known phrase of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at  in relation to unreasonableness), or a finding as a result of a failure to rationally consider the available evidence, gives rise to jurisdictional error. The applicant asserts that findings as to credit by administrative decision-makers are open to challenge as having been made in circumstances which give rise to jurisdictional error.
76 The fundamental difficulty with this ground is that the applicant has not identified a single factual finding under challenge on the basis asserted at ground 7. It is not enough to recite some principles and then simply assert baldly that the primary judge fell into error in the “making of findings as to credit/credibility”. An applicant must identify the findings which are “not based on any evidence” or findings made where there was a failure to consider evidence put to the IAA or findings which are simply unsustainable because they lack any rational foundation at all. In any event, there is simply no attempt to provide any content at all to this ground.
77 The eighth ground is that the primary judge, Judge Jarrett, failed to review “the component parts of the process by the IAA that led up to the finding from the perspective of legal reasonableness” and should have held that, on the ground of unreasonableness, the IAA fell into jurisdictional error. No content is given in relation to this ground. On its face, it is incomprehensible and having reviewed the IAA’s reasons extensively, it is not possible to discern any element of unreasonableness in the making of the findings of fact, if that is what is actually being contended.
78 The ninth ground is that “Judge Driver” failed to provide the applicant with procedural fairness and thus engaged in jurisdictional error. This contention is obviously a mistake. Nevertheless, I proceed on the footing that the applicant intended to assert by this ground that Judge Jarrett failed to provide the applicant with procedural fairness. Particulars of this ground are identified. By Particular (a), the applicant says that the IAA’s decision was based on the rejection of the evidence of the applicant, and that decision was based upon the IAA’s assessment as to whether the applicant was to be believed or not on various matters. The applicant says that the IAA fell into jurisdictional error by failing to give reasons for the findings concerning the rejection of aspects of the applicant’s evidence. The applicant also says by Particular (b) that a significant basis for the decision was findings about credibility and “a failure to disclose to the applicant … the affected material on which such a finding was based was a denial of procedural fairness”, citing Nichols v Singleton Council (No 2)  NSWSC 1517.
79 The fundamental difficulty with this ground is that when the reasons of the IAA are considered, it is perfectly clear that as to those matters in respect of which the IAA could not be satisfied of the factual assertions of the applicant, the IAA has analysed the evidence comprehensively and has provided reasons identifying why it was able to reach a state of satisfaction about certain matters and why it was unable to reach a state of satisfaction about other matters. The proposition that the IAA engaged in a “failure to give reasons” for its findings is simply not sustainable. In truth, the applicant simply emphatically disagrees with the findings and considerations of the IAA in relation to the factual matters.
80 By Particular (b) of ground 9, the contention is that a decision was made by the IAA which is “detrimental to the applicant’s rights or interests” and a significant element of the decision so affecting the rights and interests of the applicant is the state of satisfaction or otherwise about the applicant’s credibility. The applicant then contends that a “failure to disclose” the “affected material” on which such a finding was based was a denial of procedural fairness. In other words, the applicant asserts that he was entitled to be put on notice of the basis upon which a finding on credit might be made as to particular factual assertions, and the failure to disclose or the failure to give notice of those matters is a denial of procedural fairness.
81 The particular difficulty with this contention is that s 473DA makes clear the extent of the natural justice obligations to disclose adverse material is exhaustively prescribed by s 473DE of the Act. There was no obligation on the part of the IAA to put the process of reasoning which might lead to an adverse credit finding on one or more factual assertions to the applicant before the IAA reached its finding. In any event, the applicant has not identified any finding of fact under challenge on this ground. In other words, there is no content whatsoever to the ground.
82 The tenth ground asserts a number of propositions and then asserts jurisdictional error. As to the propositions, the applicant says that it follows:
… from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur … The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.  … In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute: an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.
83 Having recited those words in ground 10, the applicant then simply says that Judge Jarrett ought to have held “that the IAA made a jurisdictional error”. However, there are two particulars. The first is that the IAA was obliged to take into account the possibility that the applicant was “imputed” as an LTTE supporter or as a person with LTTE links before he left Sri Lanka. The applicant says that if the IAA had taken this possibility into account, “it may have affected the IAA’s assessment of whether the applicant faces a real chance of persecution on his return to Sri Lanka”.
84 The second particular is that the applicant stated that the harm he would face if he were to return to Sri Lanka is due to “the essential and significant reasons of his real or imputed political opinion as supporter of LTTE having lived in the LTTE controlled area” and such fear “is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct”. The applicant then asserts that “Judge Driver” should have held that “the IAA failed to consider this which was a jurisdictional error”.
85 Again, there is a reference to Judge Driver and it seems that the author of the applicant’s document has taken up a contention made concerning a decision of Judge Driver. However, I proceed on the footing that this is intended to be a particular of a ground of jurisdictional error on the part of the IAA in this decision on the footing that the IAA failed to take into account the possibility that the applicant would be imputed with the view that he is an LTTE supporter or a person with LTTE links.
86 As to these matters at ground 10, the Minister accepts that it has been recognised that, in certain circumstances, the application of the Refugee Convention test may require a decision-maker to take into account the possibility of factual assertions made by an applicant being true: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”) at -, Sackville J. The Minister contends, however, that this only arises where it is apparent, on the face of the decision-maker’s reasons, that he/she had “real doubt about his or her adverse findings on material questions of fact”: Rajalingam at . When the reasons for decision of the IAA are examined, it is clear that the decision-maker analysed the claims, the evidence and the underlying factual assertions going to each claim and reached a decision about the matters about which she could be satisfied, and those matters about which she could not be satisfied. There is no sense of closely competing contrary positions which left the decision-maker in real doubt about the certainty of the particular findings. The reasoning is clear. Throughout the reasons, the decision-maker examined the extent to which family members of the applicant had or had not engaged with the LTTE and considered the extent to which the applicant might be imputed with LTTE links. The findings were reached as a result of the evaluative process reflected in the reasoning. There is no reservation or doubt cast over the conclusions and findings by the decision-maker emerging out of that reasoning. I have discussed the scope of the reasoning extensively in these reasons.
87 As to the contention that the IAA failed to consider the applicant’s claim that he was an LTTE supporter or that he would face harm on return to Sri Lanka as a person with real or imputed political opinion as a supporter of the LTTE “having lived in the LTTE controlled area”, the difficulty is that the IAA notes that the applicant did not claim at any point to be an LTTE supporter and asserted only that he, upon return, would be imputed with the view that he is an LTTE supporter. As to the latter matter, there can be no doubt that that contention was clearly considered by the IAA. In addition, the IAA expressly considered whether the applicant would be imputed with an LTTE profile having lived in a former LTTE controlled area. The reasoning of the IAA as to that matter is discussed in these reasons.
88 Having regard to all of these matters, I am not satisfied that any one of the grounds gives rise to an arguable question of jurisdictional error.
89 Accordingly, leave to file the proposed notice of appeal out of time raising as it does many grounds which in turn require leave, must be refused.
90 The application is dismissed with costs.