FEDERAL COURT OF AUSTRALIA

AHN19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 802

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The notice of appeal be amended to delete the reference to January 2020 in ground 1(b) and insert in lieu thereof January 2010.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of the appeal to be fixed by lump sum by a Registrar, if not agreed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    The appellant, who is referred to by the pseudonym AHN19 and the pronoun they/their, is a citizen of Sri Lanka who has been refused a safe haven enterprise visa (SHEV). The appellant appeals from orders of the then Federal Circuit Court of Australia, now the Federal Circuit and Family Court of Australia (Division 2), dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority: AHN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1787 (PJ). The Authority affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the appellant a SHEV: (the Authority’s Reasons or A).

2    The appellant’s experience is somewhat unusual. The appellant says that they were a person with limited personal connections but with familial connections with pro-Tamil/pro-Liberation Tigers of Tamil Eelam (LTTE) groups. The appellant says that they were being harassed by government authorities, and in response to that harassment they joined and ran as a candidate for the United People’s Freedom Alliance (UPFA), an anti-Tamil political party. The appellant says that they did this on the advice of local elders in order to avoid harassment or negative attention from the authorities. With this motivation, the appellant joined and campaigned for the body that was harassing them. The Authority accepted that the appellant’s motivation was as claimed: A [9]. The appellant was not elected. The appellant’s involvement with the UPFA was short-lived. The Authority accepted that the appellant’s involvement with the UPFA was limited to the period from February 2011 to March 2011. Against this background, the appellant claims to fear harm due to their perceived affiliation with opposing political groups in Sri Lanka.

3    The appellant claims that following the election, they were targeted by a variety of other political factions and government authorities, including LTTE supporters. The Authority rejected the appellant’s evidence on this claim and found that after the appellant ceased campaigning for the UPFA, they faced no further threats or harm from any other political factions or “their thugs or supporters”: A [11].

4    The appellant claims that the post-election harassment continued until they departed Sri Lanka and thereafter the authorities, including the Criminal Investigation Department (CID) and Terrorism Investigation Division (TID), have continued to show an interest in them. The Authority rejected the appellant’s evidence in relation post-election harassment from government authorities, before and after the appellant’s departure from Sri Lanka: A [17], [20].

5    The appellant raises two grounds of appeal. First, that the primary judge failed to give proper reasons and failed to engage with the appellant’s submissions in a number of discrete respects. Second, that the primary judge erred in failing to find jurisdictional error on the part of the Authority in a number of respects. The two grounds of appeal overlap. Broadly, the grounds of appeal replicate the grounds of review, which were dismissed by the primary judge — the appellant advanced five grounds of review before the primary judge, four of those grounds are relevant to the appeal. In broad summary, the appellant contends that the Authority made findings without evidence, or otherwise reasoned illogically or unreasonably.

6    The Minister’s submits that the appellant has not demonstrated error on the part of the primary judge and that the primary judge was correct in concluding that the Authority’s finding was based on its “comprehensive appreciation of all the evidence before it”: PJ [24].

7    For the reasons which follow, the appeal must be dismissed.

EVIDENCE

8    In addition to the appeal book, the appellant relied on an affidavit of their solicitor, which annexed further consolidated written submissions on which the appellant had relied before the primary judge which they contend were not considered by the primary judge. Following the hearing, the appellant supplemented their submissions by providing additional evidentiary references. The parties did not include certain of the country information referred to in argument in the appeal book.

BACKGROUND

9    The appellant is a 39 year old Tamil from the Northern Province of Sri Lanka, and is of the Hindu faith. On 10 September 2012, the appellant arrived in Australia as an unlawful maritime arrival.

10    On 1 May 2016, the appellant applied for a SHEV. The appellant’s claims for protection were made in: (1) two statutory declarations, dated 1 May 2016 and 13 April 2018 respectively; (2) various supporting documentary material, including letters from the appellant’s relatives and documents regarding the appellant’s alleged involvement in an election in Sri Lanka; and (3) an interview conducted with an officer of the Department of Home Affairs on 16 April 2018.

11    As mentioned, the appellant claims to fear harm due to their perceived affiliation with opposing political groups in Sri Lanka. The appellant fears harm from Sri Lankan authorities, including the Sri Lankan Army (SLA) and CID, if returned due to being suspected as a supporter of the LTTE and for having a perceived familial connection to the LTTE. The appellant also fears harm from the opposing end of the political spectrum from LTTE supporters due to their registration as a candidate for the UPFA, an anti-LTTE political group, in a local council election in 2011.

12    The appellant claimed that they were at risk because the appellant’s family members were suspected to be LTTE members or supporters. In the appellant’s first statutory declaration, they claimed that their father (and whole family) were suspected of being involved in a bombing perpetrated on behalf of the LTTE in 1993, and that their father spent time in prison as a result. The appellant claims that one of their brothers, referred to as “V”, was abducted and is missing. Further, that the appellant’s other brother, “TK”, joined the LTTE in 2006 as a freedom fighter and was subsequently killed in a war between the LTTE and SLA. By reason of these familial links, the appellant claims that their family was deemed to be supporters of the LTTE by the Sri Lankan authorities. The appellant claims that the SLA arrested the appellant in September 2008 and they were sent to the Poonthottam Detention Camp, where they remained until January 2010. While imprisoned, the appellant claims they were beaten, interrogated and lost weight.

13    Following the appellant’s release, the appellant says that they worked for the Co-operative Society (CS), an organisation under LTTE control, to distribute relief supplies. From around January 2011, the appellant claims that CID officers visited the CS office at least once a week, and questioned them about LTTE supporters in their area and threatened them. As mentioned, in about March 2011, in an effort to avoid further adverse attention from the Sri Lankan authorities, the appellant, acting on advice received from local elders, registered as a UPFA candidate in the local council election. The appellant says that after they did this, the CID enquiries stopped.

14    During the period in which the appellant campaigned for the UPFA, the appellant claims to have faced a myriad of problems from both sides of politics. LTTE loyalists confronted the appellant and accused the appellant of working against LTTE principles because of the appellant’s UPFA candidacy. At the same time, the appellant was accused of being an undercover agent and was kidnapped and threatened by the Eelam People’s Democratic Party (EPDP), an anti-LTTE group. The appellant claims to have faced continuous harassment from both pro- and anti-LTTE political groups in their area. The appellant claims that they were forced to stop their election campaign and lost the election. The appellant says that they continued to face harassment after the election, including in the form of ongoing enquiries from CID officers.

15    In January 2012, the appellant left their job at the CS and joined the office of the Assistant Government Agent (AGA), a local government authority administration office, as a data collection officer. The appellant claims that they continued to experience harassment and threats from agents and thugs who represented other political factions. The appellant resigned from their job because the appellant feared for their life and went to stay with TH, one of their brothers.

16    The appellant claims that the TID visited them the week before they departed Sri Lanka to request them to report to the TID Colombo office, the “Fourth Floor”. The appellant feared they would be tortured and not released if they complied and so they left Sri Lanka. Since the appellant’s departure to Australia, they say that the CID have questioned their mother and brother, TH, about the appellant.

17    The appellant’s application for a SHEV was refused by the delegate and the Authority subsequently affirmed the delegate’s decision. The appellant filed an application for judicial review in the Circuit Court, which was amended twice, and ultimately dismissed.

THE AUTHORITY’S DECISION

18    The Authority began by noting that the appellant’s representative had made additional written submissions to which the Authority had had regard in its entirety: A [3].

19    The Authority summarised in detail the appellant’s claims for protection as articulated in the appellant’s two written statements in 2016 and 2018 and in the appellant’s SHEV interview in 2018: A [4].

20    The Authority made factual findings at A [5] to [20]. Critically, the Authority found:

(1)    The appellant had established the appellant’s Sri Lankan identity, ethnicity, employment and residential history as per the appellant’s claims: A [5];

(2)    The appellant had familial links to the LTTE through the appellant’s father and brothers and in addition, as a Tamil resident in an LTTE controlled area, the appellant had assisted and otherwise co-operated with the LTTE, including holding a managerial position with the CS in relation to the distribution of supplies for and on behalf of the LTTE: A [6];

(3)    The appellant faced some problems from the Sri Lankan authorities as a result of the appellant’s family’s links and the appellant’s work with the CS: A [7];

(4)    The appellant was separated from the appellant’s family upon entering the Poonthottham detention camp in 2008 and was interrogated about the appellant’s family’s LTTE connections and the appellant’s own support of the LTTE. The appellant suffered mistreatment, which may have amounted to serious harm in this period. The appellant was not charged with any offences and was released to re-join the appellant’s family in the other section of the camp, although the appellant was subjected to reporting requirements until the appellant left the camp in January 2010: A [8];

(5)    After a period of resettling and returning to work at the CS, the appellant faced harassment and repeated enquiries from the authorities, including the CID: A [9];

(6)    The appellant tried to change the CID’s perception of the appellant by running as a UPFA candidate in the 2011 local election: A [9];

(7)    The appellant faced problems as a result of the appellant’s political activity, including from pro-Tamil groups who considered the appellant’s UPFA association was a betrayal: A [10];

(8)    Although the appellant claimed to have been kidnapped and taken to a remote location, the appellant’s evidence about this was vague and was not supported by a letter from the appellant’s mother in which she outlined the troubles the appellant had faced. Accordingly, the Authority did not accept this claim: A [10];

(9)    The appellant was variously interrogated about the appellant’s and the appellant’s family’s LTTE links and the appellant’s association with the UPFA and ultimately was threatened to stop their electoral campaign, which they did: A [10];

(10)    Once the appellant stopped campaigning, the appellant faced no further threats of actual harm from any political factions or their thugs or supporters: A [11];

(11)    The authorities did not detain the appellant again after 2008: A [12];

(12)    The appellant’s claims that the appellant faced further threats and problems from other political factions and from the authorities after the election and before leaving Sri Lanka were not credible. Critically, the appellant’s claim that they were prompted to flee Sri Lanka because the CID escalated its concerns about the appellant to the TID resulting in the TID requiring the appellant to report to the “Fourth Floor” for investigation, causing the appellant to believe that the appellant would be tortured and held indefinitely or killed was not accepted for a number of reasons (A [11] to [17]) including that:

(a)    The appellant’s evidence was “considerably vague”, there were no claimed examples of any attempts on the appellant’s life and no evidence to support any actual threats or harm after the election arising from the appellant’s political involvement: A [11];

(b)    The authorities did not detain the appellant again (the last time being in 2008), nor did they formally arrest them, charge them, impose any further reporting requirements on them or send them for rehabilitation. The Authority found it implausible that the authorities would have made sustained and repeated enquiries about the appellant and the appellant’s family throughout 2011 and 2012 but not take any formal action. Further, the appellant had provided inconsistent responses in relation to the presence of the CID in the appellant’s village and the monitoring of the CS during this period: A [12];

(c)    The Authority did not accept the appellant’s claim that the appellant faced further problems from CID and TID after the appellant left the CS and joined the AGA, noting that the position with the AGA was in local government administration and that even after changing jobs the appellant stayed in the Mullativu district and remained living in the same house: A [13] to [14];

(d)    The Authority considered that the appellant’s actions in taking a local government job were incongruous with the appellant’s claims that they were a person of adverse interest to government authorities: A [14];

(e)    The Authority considered that the appellant’s delay in raising the claim that they were required to report to the TID in Colombo weighed adversely against the appellant’s credibility: A [15] to [16];

(13)    The appellant’s claims that they continued to be of adverse interest after leaving Sri Lanka on the basis of enquiries directed to the appellant’s family members were subject to material discrepancies and vagaries. Whilst the Authority was willing to accept that the appellant’s absence was noticed by officers making routine registration or other general enquiries, it did not accept that such enquiries were directed to the appellant’s family members because of an LTTE related or other adverse security profile: A [18] to [19]. The Authority did not accept that the appellant’s brother, TH, was arrested, faced problems from the authorities or was living in hiding: A [19];

(14)    The Authority did not accept that the appellant left Sri Lanka as a person wanted by the authorities: A [20]. The Authority found that the appellant was not a person of adverse interest to the claimed agents of harm in Sri Lanka: A [20].

21    On the basis of these findings, the Authority concluded that the appellant was not at risk of a real chance of harm due to their former involvement and activities with the UPFA: A [23] to [24]. The appellant had not been involved with the UPFA since the brief period in and around the 2011 election. The appellant has not been politically active in any way in Australia. The Authority was satisfied that the appellant was not motivated to re-join the party, or to become involved in any political campaigns (with any party) upon the appellant’s return and so was not satisfied that the appellant would be politically active upon return: A [24].

22    The Authority found that the appellant did not face a real chance of harm if returned: A [23] to [24]. In reaching this conclusion, in addition to the specific factual findings outlined above, the Authority relied on the country information which had been considered by the delegate as demonstrating a significant reduction in election related violence in the several subsequent elections which have occurred in Sri Lanka since the 2011 election in which the appellant was involved. The Authority further relied on the 2018 Department of Foreign Affairs and Trade Report (2018 DFAT Report) which indicated that Tamils do not face unwarranted attention from the authorities because of their political involvement and that there are no barriers to Tamil political participation. The Authority found that the country information does not support that Tamils and Hindus entering politics are targeted in ethnic cleansing campaigns. The Authority accepted that persons associated with the LTTE may still be the subject of attention (A [31]) but in the appellant’s case, the appellant would not be of interest: A [32] to [33].

23    The Authority concluded that (at A [23]):

23.    Weighing all these factors together, I find the applicant does not face a real chance of harm from anyone (including the EPDP, the Mythiri Balasrisena party, the TNA, LTTE loyalists, anyone associated with political factions, the authorities, or any other individuals or groups) on account of [the appellant’s] previous UPFA association and activities. I do not accept the applicant faces a real chance of harm from people who do not want Tamils and Hindus entering politics.

24    Accordingly, the appellant was not at risk as a result of the appellant’s ethnicity or LTTE links. The appellant’s experiences with the LTTE were “common to the experience of many”: A [25]. There was no real chance of harm in regard to any mental health issues: A [34] to [35]. There was no real chance of harm in regard to the appellant’s status as a failed asylum seeker/illegal departee: A [36] to [45]. The appellant may be monitored on the appellant’s return and may face some social stigma, but not at a sufficient level to be considered serious harm: A [46] to [48].

25    The Authority concluded that Australia’s refugee obligations and complementary protection obligations were not engaged. The appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) and did not meet the criterion in s 36(2)(a) of the Act: A [50]. In relation to the complementary protection criterion, relying on its anterior findings, the Authority concluded that the appellant did not meet the refugee criterion in s 36(2)(aa): A [53] to [58].

THE CIRCUIT COURT’S DECISION

26    The appellant advanced five grounds of review before the primary judge, only four of which are relevant to this appeal. In summary, the appellant contended that the Authority made findings without evidence and failed to consider all of the appellant’s claims and evidence, or otherwise reasoned illogically or unreasonably.

27    Contrary to the appellant’s submissions, the primary judge held that the Authority was not required to accept the appellant’s claims “carte blanche” (PJ [20]) and that it had made findings based upon “its comprehensive appreciation of all the evidence before it”, including the country information (PJ [24]). The primary judge concluded that the appellant failed to demonstrate any jurisdictional error in the Authority’s decision.

28    The primary judge dismissed the application for review. Relevantly, for the purpose of this appeal, the primary judge found that:

(a)    the Authority had given intellectual consideration to the likelihood of post-election harassment: (PJ [16] to [21]);

(b)    the Authority had not reasoned illogically in respect to the appellant’s evidence in respect to the appellant’s brother, or in respect to the appellant’s acquisition of government employment): (PJ [22] to [24]);

(c)    the claim that there was no evidence of “routine registration and general enquiry” was not made out: (PJ [25] to [26]); and

(d)    the Authority had not failed to consider all of the evidence regarding the appellant and the appellant’s asserted profile: (PJ [28] to [30]).

GROUNDS OF APPEAL

29    As mentioned, the appellant’s contentions before the Circuit Court substantially overlapped with the grounds pursued on this appeal. The grounds of appeal are relevantly as follows (as written):

1.     The Federal Circuit Court failed to give proper reasons and failed to engage with the Appellant’s submissions in regard to:

a.     The submission that the Appellant had “proffered evidence” of post election harassment;

b.     The submission that that IAA had found that the Appellant was detained until January 2010;

c.     The submission that the IAA failed to take into account the Appellant’s way of acting when threatened by authorities;

d.     The submission that the IAA failed to take into account the fact that all local government employees where the Appellant worked were Tamil;

e.     The submission that there was a distinction between “monitoring” or “surveillance” and “routine registration and enquiry”; and

f.     The submission that there was insufficient consideration of the Appellant’s profile.

2.     The Federal Circuit Court failed to determine that the IAA acted without jurisdiction regarding:

a.     The IAA’s failure to give intellectual consideration and consider all of the evidence in regard to the likelihood of post-election harassment of the Appellant, including by consideration of country information;

b.     The IAA’s illogicality, inconsistency, unreasonableness and failure to take into account all relevant information in regard to the reasons for the Appellant’s acquisition in employment with the government;

c.     The IAA’s making of findings without evidence as to the existence of a regime of routine registration and general enquiries; and

d.     The IAA’s failure to consider all of the evidence in determining the profile of the Appellant and [the appellant’s] family including:

i.     The Appellant’s mother’s statement about the questioning subjected to the Appellant by the CID,

ii.     The issue to the Appellant of a special identity card,

iii.     The Appellant’s family’s complaints to international bodies, and

iv.     The evidence regarding the Appellant’s detention and monitoring by the CID,

v.     The extent of the Appellant’s involvement with the LTTE.

30    Particular (b) of ground 1 was amended by leave at the hearing to correct an erroneous reference to January 2020 and inserted in lieu thereof January 2010.

LEGAL PRINCIPLES

31    The principles applicable to this appeal are well established by High Court authority, and have been repeatedly applied in this Court. There was no dispute as to principle between the parties. The focus of the appeal was on the application of established principle to the decisions in issue.

32    An administrative decision-maker’s statement of reasons must be read fairly in the context in which they were delivered and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280, 287.

33    A decision-maker is required to consider the applicant’s claims. Proper consideration involves an active intellectual process directed at the representations and submissions made: Tickner v Chapman [1995] FCAFC 1726; 57 FCR 451. On an appeal such as this, labels such as “active intellectual process” must not be used as a de facto gateway to merits review. Provided that the decision-maker has regard to what is said in the representations, brings their mind to bear upon the facts stated in the representations and the arguments or opinions put forward, and appreciates who is making them, it is thereafter for the decision-maker to attribute whatever such weight as thought appropriate: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ, Gageler J agreeing). The parties were invited to but did not make submissions on Plaintiff M1.

34    The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness: Plaintiff M1 at [25]. Unreasonableness is not limited to the bizarre. Making findings based on unwarranted assumptions may ground jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [45].

35    Jurisdictional error will be established where the decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made: Plaintiff M1 at [27]. Submissions of substance must be addressed: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at 389 to 391. Failure to address submissions of substance may be described as a failure to provide proper reasons or procedural fairness which may constitute jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 21; 77 ALJR 1088 at [24].

36    The decision-maker must consider all of the evidence but need not mention all of the evidence in the reasons: Reece v Webber [2011] FCAFC 33; 192 FCR 254 at [65]. A decision-maker must take into account credible, relevant and significant material Kioa v West (1985) 159 CLR 550 at [38] (Brennan J). Where the evidence is central to the issues, and if in conflict with the findings, it must be addressed: Minister for Immigration v MZYTS [2013] FCAFC 114; 230 FCR 431 at [50]. The fundamental question is the importance of the evidence to the matters in issue: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]. If a matter is important, it may need to be mentioned, even if it is ultimately rejected: MZYTS at [52]. If the evidence is ambiguous or lacking clarity, it should be mentioned: Minister for Immigration v SZSRS [2014] FCAFC 16; 309 ALR 67 at [39]. Failure to take into account information may be jurisdictional error, depending on the importance of the evidence: SZRKT at [77].

37    Even if an error does not constitute jurisdictional error, the writs of certiorari and mandamus are still available where an inferior court fails to provide procedural fairness: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [5], [33], [58], [168] to [170] (Gaudron and Gummow JJ, Gleeson CJ and Hayne J agreeing).

CONSIDERATION

38    The appellant’s counsel addressed the grounds orally in reverse order. It is convenient to adopt the same approach. There is, in any event, substantial overlap between the two grounds.

Ground 2

39    By ground 2, the appellant contends that the primary judge “failed to determine that the [Authority] acted without jurisdiction regarding” a number of particularised claims. The particulars to ground 2 are interrelated and overlap in part. The grounds of review before the primary judge numbered 1 to 4 translate to particulars (a) to (d) of appeal ground 2.

Particular (a) - failure to give requisite consideration to all of the evidence re likelihood of post-election harassment

40    The first particular raised by the appellant as ground 2(a), and as review ground 1 below, is that the Authority failed to give intellectual consideration and consider all the evidence in relation to the likelihood of post-election harassment of the appellant, including by considering of the country information.

41    The appellant contends that the Authority’s findings at A [11], A [23] and A [24], in relation to the post-election harassment which the appellant claims to have experienced, demonstrate that the Authority misunderstood the nature of the appellant’s claim. The appellant submits that the Authority erred by considering the general reduction in politically-related violence against Tamils over time instead of considering the appellant’s distinct experience of being harassed by both sides of the political spectrum. The appellant submits that the Authority erred in reasoning that the appellant’s involvement in the 2011 election would not be problematic for them because of an asserted reduction in violence post-2011, when the Authority should have instead focussed on the personal circumstances of the appellant, being that of a Tamil who was involved in elections on the part of an anti-Tamil group, a fact which was the subject of record and available for anyone to access.

42    The appellant submits that the Authority did not examine the relevant country information about political violence, and instead referred to the delegate’s decision as to reduction in election related violence in several subsequent elections. The appellant submits that the appellant has not stated that they will participate in future elections, but rather that they face ongoing risks as a result of their earlier involvement in the 2011 election. In addition, the appellant submits that the evidence the appellant proffered as to the appellant’s experience of harassment following the 2011 election was not given sufficient weight by the Authority. The appellant points to their mother’s assertion that the CID harassed them after the election and their own assertion that they experienced post-election harassment, which they say was continuous from the CID, EPDP and pro-LTTE groups.

43    The appellant’s submissions are rejected for the following reasons.

44    The relevant section of the primary judge’s reasons is coherently structured. The primary judge set out the relevant ground of review from the Further Amended Application for Review. The primary judge then extracted A [23] to [24] of the Authority’s reasons and observed that the Authority “clearly gave intellectual consideration to the likelihood of post-election harassment” in those paragraphs. The primary judge analysed the extracted passages from the Authority’s reasons at PJ [18] to [21] and in so doing, exposed the primary judge’s reasons for concluding that the Authority had not acted without jurisdiction by failing to give the requisite consideration to all of the evidence on the issue, including the country information. The appellant has not demonstrated error on the part of the primary judge in considering and rejecting this ground of review.

45    The appellant’s contentions before the primary judge, and in this Court, in relation to the Authority’s reasons are not based on a fair reading of the Authority’s reasons. The appellant’s grounds of appeal and grounds of review at first instance, in many ways, cavilled with the reasonableness or logicality of the Authority findings, or contended that various evidence was not considered. The Minister submits that it is therefore unsurprising that the primary judge repeatedly found that the Authority’s findings were open to it and supported by the material before the Authority, rather than making individual findings about whether certain evidence needed to be expressly referred to. I accept that submission. I also accept the Minister’s submission that it is especially important where the grounds raised overlap to a significant extent to read the primary judge’s reasons as a whole. The same applies to the Authority’s reasons given the extent of the overlap between the individual grounds of review raised before the primary judge. To read the primary judge’s reasons fairly requires one to read the reasons by reference to the actual ground of review that was advanced below. The Minister correctly submits that the species of jurisdictional error advanced will inform the reasoning adopted – see AYQ18 v Minister for Home Affairs [2019] FCA 1751 at [35]; Shi v Minister for Immigration and Border Protection [2015] FCA 131; 231 FCR 354 at [68] to [70]; WZASX v Minister for Immigration and Border Protection [2017] FCA 1415 at [54].

46    A specific example of the impermissible approach to reading the reasons of the Authority that informs the appellant’s submissions on this appeal is as follows. Qualified statements made by the Authority are attacked on the basis that they are absolute, or unqualified, statements. An example of this is the Authority’s statement at A [11] that the appellant “proffered no evidence to support that any problems arising from [the appellant’s] political involvement that [the appellant] faced after the election involved any actual threats or harm” (emphasis added). The Authority’s discussion of the lack of evidence is expressly directed to a lack of evidence in relation to actual threats or harm post-election: A [11]. On this basis, the Authority went on to find that once the appellant desisted from campaigning, they faced no further threats or harm from any political factions or their thugs or supporters. The primary judge recounted this finding, including the qualifying description, at PJ [8] and thereafter collapsed the description to “any threats or harm” at PJ [20], which, read in context, imports the qualifying distinction. In the appellant’s submissions on appeal, the appellant makes submissions predicated on a misreading of the Authority’s reasons, which infects the attack which the appellant makes on the primary judge, by treating the finding as a finding that the appellant “proffered no evidence that the appellant had faced threats or harm after the election”. The omission of the qualifying word “actual” is significant. Read fairly, it is clear that the Authority apprehended the evidence that the appellant led in relation to the appellant’s post-election experiences and was making a qualitative assessment between the harassment to which the appellant and the appellant’s mother had referred and “actual threats or harm”. The appellant’s attempt to characterise this as a no evidence finding on the part of the Authority in order to demonstrate error is a straw man argument and must be rejected.

47    Another recurrent theme in the appellant’s submissions is that they repeatedly, and impermissibly, trespass into being complaints about the weight to which the Authority attached to the material before it. It is well established that the weight attributed to the material before the Authority was a matter for the Authority and the Authority alone. The primary judge’s analysis at PJ [20] of the Authority’s assessment of the appellant’s personal circumstances bears repeating:

20.    The Authority had recorded the applicant’s claims at [4] of its reasons, and it referred to the mother’s statement at [11] – [12] of its reasons. The Authority was not required to accept the applicant’s claims carte blanche. It was entitled to note that the applicant had not received any threats or harm arising from [the appellant’s] political involvement in the 2011 elections. It did so in circumstances where it had found that the applicant had:

(a)    desisted campaigning after 2011;

(b)    faced no further threats or harm thereafter;

(c)    remained in Sri Lanka for 18 months after the election;

(d)    not been wanted by any political groups or the authorities when [the appellant] left;

(e)    not had any association with the UPFA since [the appellant’s] short campaign stint in 2011; and

(f)    not provided any credible evidence of anyone recently taking an interest in the applicant’s political activities.

48    The Authority was not required to refer to every piece of evidence before it, particularly in circumstances where the Authority recorded its reasoned concerns about the credibility of the appellant’s claims based on the quality of the underlying accounts, which were repeatedly described as being: vague and lacking in specific examples; uncorroborated in important respects as between the appellant and the appellant’s mother; and, in part, introduced late in the SHEV application process.

49    The appellant’s counsel also submits that the Authority erred in placing weight on the fact that the appellant had not been detained since 2008 (at A [12] and [32]), despite finding at A [8]:

8.     I accept [the appellant] was separated from [the appellant’s] family upon entering Poonthottam detention camp in 2008 and spent the next two and a half months being interrogated about [the appellant’s] family's LTTE connections and [the appellant’s] own support. [The appellant] has described being mistreated with beatings and having insufficient food and water. [The appellant] has also mentioned that [the appellant] was tortured and while it is not clear what [the appellant] meant by this, I accept [the appellant] suffered mistreatment which may have amounted to serious harm in this period. On the applicant's own evidence, [the appellant] was not charged with any offences and was released to re-join [the appellant’s] family in the other section of the camp, although [the appellant] was subjected to reporting requirements until [the appellant] left the camp in January 2010.

50    The appellant’s counsel submits that the apparently contradictory findings meant that there was a failure of the Authority to consider that the appellant was detained in some other part of the camp without liberty to leave until 2010 or there was simply an error as to date. The Minister’s counsel submits, citing Wu Shan Liang, that the decision of an administrative decision-maker should not be construed with an eye keenly attuned to error and their reasons should be read fairly.

51    I do not accept the appellant’s counsel’s submissions. I accept the Minister’s submissions. At A [12], the Authority said:

12.     The applicant raised claims of continuing interest from the CID and authorities after the election and this is also mentioned in some of the supporting material including the letter from [the appellant’s] mother. However I am satisfied the authorities never detained [the appellant] again (the last time being in 2008), nor did they formally arrest [the appellant], charge [the appellant], impose any further reporting requirements on [the appellant] or send [the appellant] for rehabilitation. I consider it implausible that the authorities would have made sustained and repeated enquiries about [the appellant’s] and [the appellant’s] family's LTTE links throughout 2011 and 2012 without following through to any formal repercussions. When the issue was raised in the SHEV interview, the applicant responded that they were keeping [the appellant] under surveillance while they gathered the information to confirm that [the appellant] had helped the LTTE. When asked if [the appellant] was subject to reporting conditions in this period [the appellant] confirmed [the appellant] was not, stating the CID were not present in the resettlement period. The applicant's responses are inconsistent with [the appellant’s] own claims that the CID were monitoring the Tamils in [the appellant’s] village and their interest in the Co-Operative Society over this period. Overall I am unpersuaded by the applicant's explanations in these respects and I consider rather, that [the appellant] was not of sufficient interest to warrant any formal action against [the appellant].

52    The reference to being detained in 2008 in A [12] is correct – the last occasion on which the appellant was detained was in 2008. The appellant continued to be detained until they left the camp in January 2010 but that does not alter the fact that the last occasion on which they were detained was in 2008. In terms of substance, the Authority clearly appreciated that the appellant’s two-and-a-half-month interrogation in the Poonthottam detention camp, prior to the appellant’s release to the other part of the camp, was significant in terms of assessing the Sri Lankan authorities’ special interest in the appellant specifically, and weighed this in the balance in making its findings. It was open to the Authority to regard the period after the appellant was released without charge to re-join the appellant’s family in the other section of the camp as less significant in terms of assessing whether the authorities were taking an adverse interest in the appellant on a continuing basis.

53    At A [32], the Authority said:

32.     …However the applicant’s father and brother TK died in 1997 and 2008 respectively, [the appellant’s] brother V has been missing since 2006 and [the appellant’s] brother who was briefly with the LTTE after being forcibly recruited was released from them in 2008 and on the evidence has been living in Sri Lanka without repercussions from this involvement. I am satisfied the applicant's family members would not still be wanted by the Sri Lankan authorities. While I accept the applicant has had some numerous adverse interactions with the authorities, [the appellant] has not been detained since 2008 and was never subject to formal charges or rehabilitation and I found [the appellant] was not of adverse interest to the authorities when [the appellant] left Sri Lanka. I am also am not satisfied the authorities have been searching for the applicant in [the appellant’s] absence. Taking into account these factors, and the significant passage of time which has passed since [the appellant] left Sri Lanka in 2012, the changed risk profiles and security objectives and the overall easing of the security situation, I am not satisfied that the applicant would be an adverse security interest for LTTE or separatist reasons, nor any other reasons in the event that [the appellant] is returned to Sri Lanka. I do not accept [the appellant] would be on a stop and watch list.

54    The reference to the appellant not having been “detained since 2008” is somewhat ambiguous, but read fairly and in the context of the whole of the reasons, including the specific chronology of the events in the detention camp in A [8], the reference is to be understood as a reference to the date of the last occasion on which the appellant was detained, which was in 2008. An alternative and equally available reading is that properly understood, the reference to the detention in 2008, is a reference to the two and half month in 2008 period when the appellant was held separately to the appellant’s family in the Poonthottam detention camp and was the subject of special interest and interrogations. At A [32], the Authority first considers the ties of the appellant’s family members to the LTTE. The Authority then notes its satisfaction that the appellant’s family members are not still wanted by the Sri Lankan authorities. It is in this context that the Authority observes that the appellant “has not been detained since 2008 and was never subject to formal charges or rehabilitation”. The Authority is making the point that since that incident, the appellant has not been charged with any offences and was released to re-join the appellant’s family in the other section of the camp (at A [8]) and therefore is not of any continuing special interest to the Sri Lankan authorities.

55    Accordingly, I do not accept the appellant’s submission that the Authority failed to consider that the appellant was detained in the Poonthotham camp until 2010, particularly in light of the express finding at A [8].

56    The primary judge’s consideration of the way in which the Authority used the country information in relation to election-related violence and the issue of unwarranted attention of the authorities being drawn to Tamils and Hindus because of their political involvement or activities at PJ [18] demonstrates that the Authority both appreciated and engaged with the substance of the contentions relevantly advanced by the appellant. The primary judge concluded that the Authority was entitled to find that, first, the appellant did not face a real chance of harm by reason of the appellant’s previous UPFA association and activities, and, secondly, that the appellant did not face a real chance of harm from people who did not want Tamils and Hindus entering politics: PJ [18]. As the primary judge observed at PJ [21], the country information referred to by the Authority supported the proposition that any past political activity on the part of the appellant would not, in the reasonably foreseeable future, give rise to a real chance of the appellant’s suffering harm should the appellant return to Sri Lanka. The submission advanced on this appeal that the Authority misunderstood the nature of the claim being advanced by the appellant must be rejected.

Particular (b) - illogicality, inconsistency, unreasonableness in relation to inferences drawn from appellant’s employment with the government

57    The appellant submits that the Authority failed to consider all relevant information in regard to the reasons for the appellant taking on employment with the Local Government Administration (LGA), and made internally inconsistent findings. The appellant’s submissions repeated those that the appellant had made before the primary judge in relation to review ground 2(ii). The appellant submits that the primary judge erred in rejecting this review ground.

58    The appellant submits that it is inconsistent for the Authority to have accepted at A [9] that the appellant ran as a UFPA candidate in the local election despite being threatened and imprisoned by government authorities as a strategy, albeit unorthodox, to repel further adverse interest in them by the authorities and yet to find that the appellant’s subsequent decision to gain employment in the LGA was “incongruous with the appellant’s fear of authorities and the appellant’s claims that the appellant was a person of adverse interest to government authorities at that time” at A [14]. The appellant submits that in making the later finding, the Authority has ignored its own finding at A [9] and failed to consider “its own determination as to the [a]ppellant’s tendencies when faced with threats”: Appellant’s Written Submissions [28]. The appellant further submits that the Authority failed to consider the appellant’s evidence that all staff working at the LGA were Tamils, and no local Sinhalese staff worked there.

59    The primary judge found this review ground to be without merit: PJ [24]. I agree. The appellant has not demonstrated that there is any illogicality, inconsistency or unreasonableness in relation to, or as between the two findings. The first finding is at A [9]:

9.    I accept that after resettling in Vavunikulam and returning to work in the Co-operative Society, while [the appellant] was not under reporting obligations, the applicant faced monitoring and harassment and repeated enquiries from the authorities including the CID. I accept that on the advice of some local elders, the applicant tried to change the CID’s perception of [the appellant] by running in the March 2011 local council elections as a candidate for the UPFA). This seems an unorthodox strategy for someone in the applicant’s circumstances and I have carefully considered the plausibility of these claims in light of the UPFA being an anti-LTTE/government party and the applicant's and [the appellant’s] family's history of LTTE links as well as [the appellant’s] limited involvement with the party. However the applicant’s oral and documentary evidence on the matter has been convincing. I accept [the appellant’s] claimed motivations for joining and running for the UPFA and that being an educated young person, [the appellant] met the party’s candidature needs. The applicant confirmed at the SHEV interview that [the appellant’s] involvement with the UPFA was limited to around one month from February 2011 - March 2011 and that while [the appellant] did not withdraw, [the appellant] ceased campaigning before the election was held, and did not win enough votes to secure a seat. I accept [the appellant’s] evidence that [the appellant] remained in touch with the party for the month afterwards but not subsequently.

60    The second finding is at A [14], but it is necessary for context to reproduce A [13] as well:

13.    The applicant claims that [the appellant] faced further problems from the CID and then from the TID after changing [the appellant’s] workplace. [The appellant] claims that the CID tracked [the appellant] down a few weeks after [the appellant] moved to the AGA job and suggested [the appellant] must have had LTTE involvement or else [the appellant] would not have tried to escape from them to a different location. [The appellant] claims that after around three or four CID visits the matter was escalated to the TID from the Fourth Floor in Colombo who visited [the appellant] and asked [the appellant] to report to their Colombo office for investigation. Believing [the appellant] would be tortured and held indefinitely or killed, this prompted the applicant to leave Sri Lanka.

14.    I am unpersuaded by these claims. Notably, when the applicant decided to move jobs and locations to avoid the CID visits, the job [the appellant] took was a position with the AGA, in local government administration, and even after changing jobs [the appellant] stayed in Mullaitivu district and remained living in the same house, which on the evidence, was not somewhere the CID or other authorities ever sought to locate [the appellant]. When this, and the fact that [the appellant] was never arrested were raised with the applicant, [the appellant] responded that [the appellant] was under CID surveillance but at that time of the resettlement period [the appellant’s] area was governed by a civil administration where police were in charge and the CID would have needed special permission to go to [the appellant’s] house. [The appellant] also stated that as the authorities were claiming the LTTE was defeated, the CID needed permission from higher authorities before they could arrest [the appellant]. When asked why the TID would ask [the appellant] to report to their office rather than escorting [the appellant] directly, the applicant responded they were giving [the appellant] a chance but as [the appellant] hadn't complied [the appellant] would be on their list and they will find [the appellant]. I do not accept these are plausible scenarios. I do not accept the CID, TID or any authorities would not have been able to go to the applicant's home or that they needed special permission to make an arrest, particularly as various sources considered by the delegate confirm that the Prevention of Terrorism Act remained in operation in 2011/12 and was being used to arrest and detain Tamils suspected of LTTE or separatist activities or support. I also find the applicant's actions in taking a local government job to be incongruous with [the appellant’s] fear of authorities and [the appellant’s] claims that [the appellant] was a person of adverse interest to government authorities at that time.

61    Contrary to the appellant’s submissions, the finding at A [9] is not a determination by the Authority as to the appellant’s “tendencies when faced with threats”. This particular of appeal is framed on a false premise. On the appellant’s own evidence, the appellant’s actions in joining the UPFA were the result of advice the appellant took from “some local elders”. The strategy which the Authority accepted that the appellant employed on the advice of the elders did not prove to be successful. That of itself might suggest that appellant would pause before deploying a similar strategy in the future. In any event, there is nothing in the Authority’s reasons from which it could be inferred that the Authority had found that the appellant had a practice or tendency to act in the particular way in which the appellant now submits.

62    The appellant complains that the Authority overlooked evidence in relation to the ethnicity of those that worked with the appellant in the LGA. The fact that the Authority did not expressly refer to the appellant’s evidence in relation to all staff working at the LGA being Tamils, does not give rise to an inference that this evidence was overlooked. The Authority’s finding that it was not plausible that the appellant would seek to avoid being visited by the CID by moving to the employ of the LGA is neither illogical, inconsistent nor unreasonable. It is a finding that was open to the Authority. It was one of a number of implausible features of the appellant’s evidence about this period that caused the Authority to reject the appellant’s claims in relation to post-election threats as opposed to harassment. The appellant’s submission to the effect that credit is non-linear may be accepted but it does not detract from the fact that the Authority was entitled to view the evidence in relation to the appellant working at the LGA, including in respect of the inconsistencies in the evidence, cumulatively. The appellant has not established error on the part of the primary judge in rejecting this ground of review below.

Particular (c) - no evidence of monitoring, routine registration and enquiry

63    The third particular raised by the appellant as ground 2(c), and as review ground 3 below, is a no evidence ground.

64    To succeed on a “no evidence” ground, the appellant must demonstrate an absence of any supporting material or rational or probative basis for the Minister’s decision: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [44] to [46]. The high threshold that an appellant must establish before a decision will be held to be beyond power on the ground of an absence of evidence or probative material protects against the Court sliding into merits review: Renton v Minister for Home Affairs [2021] FCA 931 at [28].

65    To establish jurisdictional error, the fact to which the alleged error relates must be more than a peripheral finding, it must be of central importance to the decision-maker’s reasoning: Hands at [46]. The error must be material to the ultimate outcome such that, absent its occurrence, the decision-maker could have realistically arrived at a different conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29] to [30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).

66    There are two parts to the appellant’s argument. First, the appellant contends that the Authority made findings (at A [14]) in relation to the CID and TID that were not supported by evidence, were speculative or based on unwarranted assumptions: DAO16. Second, the appellant contends that the Authority made “findings without evidence as to the existence of a regime of routine registration and general enquiries”: ground 2(c).

67     The challenge to the findings made at A [14] in substance amounts to a complaint that the Authority did not accept the appellant’s evidence relevant to the operations of the CID and TID. The appellant complains that the Authority found that:

(1)    the CID / TID were allowed to enter private dwellings whereas the appellant said they were not;

(2)    the CID was allowed to arrest with impunity whereas the appellant said that they were required to investigate, then obtain permission before making an arrest; and

(3)    the CID / TID would not “request” the appellant visit them in their office, as opposed to merely arresting the appellant whereas the appellant gave evidence that the appellant was given a chance to attend voluntarily.

68    The argument advanced on appeal rehearsed the argument made before the primary judge.

69    The primary judge dismissed the relevant review ground, reasoning as follows (at PJ [25]):

... The Authority had the benefit of the findings of the delegate in relation to CID/TID practices and, in any event, the Authority was entitled to examine the applicant’s claims about the CID requiring permission before it could make an arrest in light of country information which was suggestive of the CID being autonomous and having extensive powers. In such circumstances, the Authority was entitled to assess the applicant’s claims, and not accept them, after careful consideration. It did so after it looked at all of the applicant’s claims contextually.

70    The appellant has not demonstrated error on the part of the primary judge. This part of the no evidence appeal must be dismissed for the reasons given by the primary judge.

71    I now turn to the second part of the argument, which concerns a finding that is reproduced in ground 2(c) as a finding as to “the existence of a regime of routine registration and general enquiries” (emphasis added).

72    Before the Authority, the appellant claimed that after the appellant’s departure from Sri Lanka, the appellant’s brother and mother had been contacted by Sri Lankan authorities and questioned about the appellant’s absence. The appellant claimed that this first occurred in late 2012, again in 2016, and in December 2017 (at A [18]). The appellant claimed that in 2012, after the appellant left Sri Lanka, the appellant’s brother, TH, was arrested by Sri Lankan Police who enquired as to the appellant’s whereabouts. Further, that in 2016 TH was again asked about the appellant’s whereabouts and in 2017 TH relocated and went into hiding. The appellant claims that in December 2017 there were enquiries of the appellant’s mother about the appellant’s and TH’s whereabouts. The Authority assessed the appellant’s claims in this regard at A [19]. In doing so, the Authority noted that the appellant’s evidence on this issue in relation to the claims based on TH’s experiences was both inconsistent and vague and that the discrepancies in the appellant’s accounts were material. The Authority did not accept that after the appellant departed Sri Lanka TH was arrested, faced problems from authorities or thugs and was living in hiding. The Authority was also concerned with the plausibility of the appellant’s mother suddenly being asked about the appellant’s whereabouts after a hiatus of about five years. Even so, the Authority was willing to accept that the appellant’s absence had been noticed and questioned by officers making routine registration or other general enquiries (emphasis added). It is that finding which is the subject of the no evidence submission.

73    The finding was made in the context of, and to some extent, as a matter of inference from, the Authority’s anterior finding that the appellant was not under surveillance of the authorities or any political groups when they left Sri Lanka in 2012. The appellant submits that this finding mirrors the delegate’s finding that these enquiries were as a result of “registration, census or general enquiry regarding the appellant’s whereabouts”. The appellant submits that the delegate made this finding on the basis of a 2013 survey about internally displaced persons (IDPs), and the appellant’s mother and brother are not IDPs. The appellant submits that there is no evidence of a practice of routine enquiries unless a party was of interest to the authorities. The appellant submits that the country information before the Authority demonstrated that:

(1)    there is a practice of monitoring persons following return as a failed asylum seeker;

(2)    persons associated with the LTTE were at risk of monitoring and harassment and former LTTE members may require registration; and

(3)    the CID were reported to have made enquiries of family members on the departure of suspected LTTE-affiliated persons.

74    The primary judge concluded that the country information “including the 2018 DFAT report” provided evidence as at the date of that report there was evidence of “Tamils in the north and east of Sri Lanka” being monitored by military intelligence: PJ [23]. The 2018 DFAT Report speaks to the period in which the alleged inquiries of TH and the inquiry of the appellant’s mother occurred. The content of the 2018 DFAT Report provides evidentiary support for the findings made by the Authority. The 2018 DFAT Report identifies monitoring and harassment, amongst other things, based on Tamil ethnicity. The 2018 DFAT Report discusses targeted surveillance and questioning in some areas, including the North, but also discusses authorities imputing LTTE support on the basis of ethnicity. As the primary judge observed, a “no evidence” submission will be defeated where there is even a skerrick of evidence on a matter: PJ [26], citing MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 at [54]. The appellant has not demonstrated any error on the part of the primary judge’s in rejecting the corresponding review ground.

75    There is a further difficulty with the appellant’s submissions directed to this particular of appeal ground 2. The appellant focusses on only one part of the Authority’s finding and, in doing so, invites the Court to parse the Authority’s reasons into discrete segments, rather than reading the reasons fairly and as a whole. The finding that the appellant attacks is a compound finding framed in the alternative (at A [19]):

… Overall, I am willing to accept that the applicant’s absence has been noticed and questioned by officers making routine registration or other general enquiries…

(emphasis added)

76    The appellant misstates the finding in ground 2(c) as a finding that there existed a regime of “routine registration and general enquiries”. The introduction of the concept of a “regime” coupled with the substitution of “and” for “or” and the omission of “other” before general enquiries is significant. By misstating the finding, the appellant ignores the broader finding that the appellant’s absence was “noticed and questioned by officers either as part of routine registration or in the course of making other general inquiry”. That broader finding is available as a matter of inference from the anterior finding that the appellant was not under surveillance of the authorities or any political groups when the appellant left Sri Lanka in 2012 and the Authority’s acceptance that the appellant’s absence had been noticed and questioned by officers. It is not a finding of a “regime” or established practice of “other general inquiry”. It is a finding of happenstance — of something being noticed and questioned in the course of other general enquiries. When the finding is read in its terms, in context and fairly, it is clear that the no evidence submission must be rejected. Read fairly, the finding is unexceptional in terms of inferential fact-finding. It flows from the anterior findings made by the Authority and is supported by country information and the findings of the delegate. The no evidence challenge must be dismissed.

Particular (d) - failure to consider all of the evidence in determining the risk profile of the appellant and the appellant’s family

77    The final particular raised by the appellant as ground 2(d), and as review ground 4 below, is that the primary judge erred in failing to find that the Authority “acted without jurisdiction” by failing to consider all of the evidence in “determining the profile of the [appellant] and [the appellant’s] family”. The appellant specifies the following matters as matters that the Authority allegedly failed to consider:

(1)    the appellant’s mother’s statement about the questioning that the appellant was subjected to by the CID;

(2)    the issue to the appellant of a special identity card;

(3)    the appellant’s family’s complaints to international bodies;

(4)    the evidence regarding the appellant’s detention and monitoring by the CID; and

(5)    the extent of the Appellant’s involvement with the LTTE.

78    The Appellant submits that at A [32], the Authority failed to consider these matters as factors that “heighten the appellant’s profile” with the result that the Authority “glossed over” the true nature of the appellant’s profile. At A [32], the Authority said:

32.    In determining whether the applicant may fall into any of these categories of interest. or may otherwise attract the authorities' adverse attention, I have given careful consideration to [the appellant’s] profiles and circumstances. [The appellant] does have varying extents of connections to the LTTE though [the appellant’s] father who was jailed from 1993 - 1997 for (albeit unwittingly) helping the LTTE carry out an explosion, [the appellant’s] brother TK who was an LTTE captain killed in combat in 2008 and their younger brother who was forcibly recruited and held by the LTTE until TK joined, and [the appellant’s] other brother V who was abducted having carried messages for the LTTE prior to 2006, as well as having [the appellant’s] own history of supporting the LTTE through the Co-operative Society and as a civilian in Mullaitivu. However the applicant's father and brother TK died in 1997 and 2008 respectively, [the appellant’s] brother V has been missing since 2006 and [the appellant’s] brother who was briefly with the LTTE after being forcibly recruited was released from them in 2008 and on the evidence has been living in Sri Lanka without repercussions from this involvement. I am satisfied the applicant's family members would not still be wanted by the Sri Lankan authorities. While I accept the applicant has had some numerous adverse interactions with the authorities, [the appellant] has not been detained since 2008 and was never subject to formal charges or rehabilitation and I found [the appellant] was not of adverse interest to the authorities when [the appellant] left Sri Lanka. I am also am not satisfied the authorities have been searching for the applicant in [the appellant’s] absence. Taking into account these factors, and the significant passage of time which has passed since [the appellant] left Sri Lanka in 2012, the changed risk profiles and security objectives and the overall easing of the security situation, I am not satisfied that the applicant would be an adverse security interest for LTTE or separatist reasons, nor any other reasons in the event that [the appellant] is returned to Sri Lanka. I do not accept [the appellant] would be on a stop and watch list.

79    At A [33], the Authority concluded:

33.    Overall, having regard to the applicant's particular circumstances and profile and the country information depicting a changed country situation in Sri Lanka which has altered the government's security focus and radically affected the country's security and political landscape, I am satisfied the applicant does not face a real chance of harm on account of [the appellant’s] Tamil race, nor for any LTTE/separatist/anti-government imputations arising from [the appellant’s] race, gender, age, origins from Mullaitivu and the Northern Province, [the appellant’s] assistance given to the LTTE during the war, nor any other factors in [the appellant’s] or [the appellant’s] family member's profiles or circumstances.

80    The appellant’s complaint is in effect a complaint that the Authority failed to engage with the relevant material. As such, this ground attracts the application of the principles articulated by the High Court in Plaintiff M1.

81    The appellant advanced the same arguments on this point in the appeal as had been advanced before the primary judge in relation to the corresponding ground of review. The primary judge dismissed the corresponding review ground as being without merit at PJ [30]. The primary judge concluded at PJ [29] that the Authority had engaged in the requisite way with the relevant material and with the issues advanced by the appellant in relation to the appellant’s profile, the main part of the Authority’s analysis on this point being at A [32] to [33]. The appellant has not established any error on the part of the primary judge. The primary judge was correct to conclude that the findings made by the Authority were open and that the Authority had apprehended the appellant’s argument and engaged with the material in the requisite way. Read fairly and as a whole, the Authority’s reasons do not permit the conclusion for which the appellant contends, namely that where discrete matters were not referred to expressly by the Authority they were not taken into account. As the primary judge observed, citing Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; 236 FCR 593 at [46], it is well-established that a decision-maker such as the Authority is not required to refer to each and every aspect of the material on which it has based its findings.

Conclusion on Ground 2

82    Ground 2 must be dismissed. The appellant has not demonstrated any error on the part of the primary judge in concluding that the Authority’s decision was not affected by jurisdictional error. The Authority made findings based on a broad range of evidence, including country information and the statement of the appellant’s mother. The Authority exposed its reasons for not preferring the account given by the appellant in making its findings. The Authority concluded that material inconsistencies in the accounts given, lack of corroborating evidence where corroboration would be expected, and the delay of the appellant in raising certain claims weighed against accepting the appellant’s account. The appellant has not demonstrated error in the primary judge’s conclusion the Authority’s findings were rational, reasonable and open on the whole of the material before it.

Ground 1

83    Ground 1 is extracted in full at paragraph [29] above. The extent of the overlap between grounds 1 and 2 is immediately apparent. As the chapeau of ground 1 makes clear, the appellant alleges error on the part of the primary judge in failing to “give proper reasons” and failing to “engage with” the appellant’s submissions in relation to six particularised matters. This ground relies on error of the type identified in Dranichnikov, namely a failure to address submissions of substance which may be described as a failure to provide proper reasons or procedural fairness and which may constitute jurisdictional error. The requisite level of engagement on the part of the decision-maker is as articulated in Plaintiff M1 at [24].

84    The appellant accepts that there is no requirement for the decision-maker to engage in a line by line refutation of the appellant’s claims. However, the appellant says that the primary judge failed to grapple with the substance of the appellant’s submissions. The appellant’s contentions in respect of each of the particulars given in respect of ground 1 must be rejected on a fair reading of the Authority’s reasons such as that which informed the primary judge’s analysis.

Particular (a) – evidence of post-election harassment

85    Particular (a) is directed to the submission that the appellant had “proffered evidence” of post-election harassment. It substantially, if not completely, overlaps with particular (a) of ground 2. It must be dismissed for the reasons given at paragraphs [44] to [56] above.

Particular (b) – detention until January 2010

86    Particular (b) is directed to the submission that the Authority had found that the appellant was detained until January 2010. The appellant made submissions on this issue as part of its argument on ground 2(a). In so far as ground 1 is based on this issue, it must be dismissed for the reasons given at paragraphs [49] to [55].

Particulars (c) and (d) – appellant’s tendencies when threatened by authorities

87    Particular (c) is directed to the submission that the Authority failed to take into account the appellant’s “way of acting” when threatened by authorities. It substantially, if not completely, overlaps with particular (b) of ground 2. Particular (d) is directed to the submission that the Authority failed to take into account the fact that all LGA employees where the appellant worked were Tamil. It substantially overlaps with an argument advanced in support of particular (b) of ground 2. The appellant’s submissions on this issue must be rejected for the reasons given at paragraphs [61] to [62] above.

Particular (e) – monitoring, surveillance, registration and enquiry

88    Particular (e) is directed to the submission that there was a distinction between “monitoring” or “surveillance” and “routine registration and enquiry”. The appellant submits that the primary judge did not engage with the distinction the appellant sought to draw between the practice of “routine registration and enquiry” and monitoring / surveillance. The appellant submits that it was the lack of evidence of the existence of the former that the appellant took issue with and that the appellant’s submission was that there was clearly evidence of the latter, but, it was submitted, only in the context of “interest” by authorities. The appellant complains that the primary judge’s analysis at PJ [25] and [26] does not grapple with the submission. I disagree. The submission made before the primary judge was based on a false premise as to the Authority making a finding without evidentiary foundation for any practice of “routine registration and general enquiry”. The primary judge concluded, correctly, that the Authority was entitled to, and did, assess the appellant’s claims, and did not accept them, after careful consideration based on looking at all of the appellant’s claims contextually: PJ [25]. For the reasons given at paragraphs [66] to [76] above, I am satisfied that although the reasons of the primary judge on this issue are brief, the appellant has not demonstrated jurisdictional error as alleged.

Particular (f) – applicant’s profile

89    Particular (f) is directed to the submission that there was insufficient consideration of the appellant’s profile. The arguments made in respect of this particular of ground 1 overlap with those made in support of particular (d) of ground 2. For the reasons given in paragraph [81], this ground must be dismissed.

Conclusion on Ground 1

90    Ground 1 must be dismissed. The appellant has not demonstrated any error on the part of the primary judge in concluding that the Authority’s decision was not affected by jurisdictional error. The appellant has not established that the primary judge erred in concluding that the Authority engaged in the requisite way with the appellant’s claims and the material on which the appellant’s claims were based.

CONCLUSION

91    For these reasons, the appeal must be dismissed. Costs should follow the event with the appellant to pay the Minister’s costs. In the absence of agreement, costs are to be fixed by lump sum by a Registrar.

Associate:

Dated:    14 July 2023