CAT/C/60/D/648/2015
doubts about whether he had ever been detained by the Department. The third ground of
appeal related to the reviewer’s alleged failure to accord proper weight to the court
documents as evidence that corroborated the complainant’s claims. In that connection, the
Court found that it was within the authority of the reviewer, in the light of her concerns
about credibility, to find that the documents did not relate to the complainant and therefore
to give them no weight as corroborating evidence.
4.16 The State party adds that the complainant’s appeal of 2 August 2013 was dismissed
by the Federal Court on 4 December. The appeal was based on the claim that the reviewer
had denied the complainant procedural fairness by failing to advise him that she might find
the report filed by the police with a court in Colombo genuine but not relating to the
complainant. Consequently, it was claimed that the reviewer had failed to provide the
complainant with an opportunity to provide further comments on that issue.
4.17 The Federal Court accepted that the critical issue on which the reviewer’s decision
was likely to turn was whether the complainant had been arrested and detained by the
Criminal Investigation Department, and in turn that the reviewer was obliged to make the
complainant aware of this issue. In the Court’s view, the complainant had clearly been
made aware of this situation and, specifically, was made aware that the reviewer might
decide that the court document did not relate to him. The complainant’s solicitor and
migration agent were aware that the misspelling of the complainant’s name was
problematic. He was given the opportunity, which he availed himself of, to make written
submissions thereon. The written submissions were considered by the reviewer and the
complainant’s representative was also invited to provide additional comments. The
reviewer’s conclusion on the question of the court document flowed from “an obvious and
natural evaluation” of the document and the inherent and apparent weakness of that
document. Therefore, the Court was not persuaded that there had been any lack of
procedural fairness. In so finding, the Court noted that the complainant had not argued on
appeal that it was not within the authority of the reviewer to give little or no weight to the
court document in the light of the problems identified with the complainant’s evidence.
4.18 The State party reiterated that, on 15 August 2014, the High Court of Australia
dismissed the complainant’s application for special leave to appeal the decision of the Full
Federal Court of Australia as he had not identified any question of principle that would
warrant a grant of special leave.
4.19 On 2 September 2014, the complainant requested a ministerial intervention under
sections 417 and 48B of the Migration Act 1958 to permit him to apply further for a
protection visa, which the Minister may grant if it is in the public interest. The State party
explained that a request for intervention can be referred to the Minister for consideration if
it contains additional information which is likely to enhance the person’s chances of
making a successful claim for protection. Consequently, the claims made by the
complainant were again assessed in full by a delegate of the Assistant Minister for
Immigration and Border Protection. The delegate found that no further information
provided in the complainant’s request indicated that he had a greater chance of making a
successful protection visa application. The State party stated that the complainant had
provided, for the first time, a letter from the Registrar of a magistrates court dated 1
September 2014 attesting that the complainant’s name had been misspelled in the extract of
the court record. The complainant also provided a letter from a Member of Parliament from
Batticaloa District reiterating the complainant’s claims of persecution by the Criminal
Investigation Department and the Karuna group. The delegate considered that, in the light
of the problems with the complainant’s credibility, those documents should be given no
weight by the Department of Immigration and Border Protection. The delegate did not refer
the case to the Minister for consideration as none of the information provided indicated that
the complainant had a better chance of making a successful application for a protection visa.
4.20 The State party asserts that for the reasons set out above, the complainant’s claims
are inadmissible and/or without merit.
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