AEK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 576

1. The applicant also submitted related documents in support of his claims including the document he claimed to have received when attending the Magistrates' Court in March 2009, evidence of reports made by his family regarding his sister's disappearance and country information.
2. On 30 March 2017, the Department of Immigration and Border Protection (Department), as it then was, invited the applicant to attend an interview on 19 April 2017 to discuss his Visa application.
3. On 19 April 2017, the applicant attended the interview (Visa Interview). During the Visa Interview the applicant raised a new claim that in 2008 he had fought with the LTTE for a period of approximately four months and that the scarring on his leg and stomach were sustained during that time, as a result of a shelling incident. The applicant also claimed that he had been identified as a member of the LTTE by an informer and confessed to the Sri Lankan army that he was in fact an LTTE fighter.
4. At the Visa Interview the applicant also provided a number of documents to further support his claims, these included:

(1) an additional complaint registration to the Human Rights Commission of Sri Lanka, evidencing reports made by his family about his missing sister;

(2) a letter from N.Sivasakthy Ananthan, a TNA Member of Parliament who he claimed to have supported; and

(3) several untranslated documents.

1. On 25 May 2017, the Delegate refused to grant the applicant the Visa (Delegate's Decision).
2. On 30 May 2017, the Delegate's Decision was referred to the Authority for review.
3. On 19 June 2017, the applicant's newly appointed migration agent emailed the Authority and provided a written statement dated 18 June 2017 from the applicant and supporting documents which contained new country information on behalf of the applicant (IAA Submission).
4. On 22 December 2017, the Authority affirmed the Delegate's Decision not to grant the applicant the Visa.

1. The Authority issued its statement of decision and reasons on 22 December 2017 (Authority Decision).

1. At paragraph [3] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act).
2. At paragraph [4] of the Authority Decision, the Authority stated that it had received the IAA Submission and considered it to largely contain argument rather than new information and as such had regard to it.
3. At paragraph [5], the Authority identified that the IAA Submission contained a new claim that if the applicant returns to Sri Lanka, he will not be able to work and make a living due to persisting harassment from the Sri Lankan authorities as a result of his profile (New Claim). The Authority considered the applicant's Visa application and Visa Interview which contained evidence of the applicant's steady employment and noted that the Delegate prompted the applicant on a number of occasions as to whether he wished to provide any further information. As a result, the Authority found that the applicant had the opportunity to make this claim prior to the Delegate's Decision being made, and that no explanation had been given for his failure to do so. Accordingly, the Authority was not satisfied that the New Claim was credible personal information and found that ss 473DD(b)(i) and (ii) were not satisfied and that there were no exceptional circumstances which would permit consideration of the new information.
4. At paragraph [6], the Authority considered the article from Ceylon News dated 5 October 2016 contained in the IAA Submission which was not previously before the Delegate. The Authority did not accept that the article could not have been provided to the Delegate given it was publicly available and pre-dated the Delegate's Decision. The Authority found that the article was general country information as opposed to personal credible information and accordingly, found that ss 473DD(b)(i) and (ii) were not satisfied and that there were no exceptional circumstances which would permit consideration of the new information

1. At paragraph [7] of the Authority Decision, the Authority summarised the applicant's claims for protection.
2. At paragraphs [9] - [10] of the Authority Decision, the Authority considered the applicant's claims regarding the shelling in 2008. The Authority noted that the applicant provided inconsistent versions of these events when comparing his Visa application and the Visa Interview. The Authority was not prepared to accept that the applicant had fought for the LTTE, instead finding that this claim had been made to bolster his claims for protection. The Authority found that the account given in the IAA Submission, where the applicant claimed to have been injured in the shelling of a civilian area, to be more credible.
3. At paragraphs [12] - [16] of the Authority Decision, the Authority considered and accepted the applicant's claims regarding his arrest, interrogation and detainment as supported by the Magistrates' Court documents the applicant provided. The Authority further accepted that the applicant was released in 2010 after approximately one year, however, did not accept that this release was conditional on reporting conditions.
4. At paragraphs [17] - [19] of the Authority Decision, the Authority considered the applicant's claims regarding his political activity and support of the TNA. The Authority noted that at the Visa Interview the applicant did not appear to have a detailed knowledge of the TNA. The Authority also noted that the letter from the TNA Member of Parliament stated that the applicant faced threats from supporters of other parties which did not form part of the applicant's claim. As a result, on this inconsistency the Authority placed little weight on the letter. The Authority was prepared to accept that the applicant had supported the TNA and the TNA candidate and that he would have come to the attention of the army in doing so and was required to register and report to the army camp from time to time.
5. At paragraph [20] of the Authority Decision, the Authority did not accept that the applicant remained the subject of formal monitoring in 2011 because he was able to obtain a passport.
6. At paragraphs [21] - [22] of the Authority Decision, the Authority accepted the applicant's account of his departure from Sri Lanka on 27 September 2012. The Authority further accepted that the army and the CID would have had an interest in a sudden disappearance from the applicant and accepted that the applicant's illegal departure would have urged the authorities to come to his home to look for him on a number of occasions. However, the Authority was not prepared to accept that this attendance on his home was as recent as 2017, given their awareness of the applicant being out of the country since 2012.
7. At paragraphs [25] - [33] of the Authority Decision, the Authority found that the applicant would likely be regarded as having a low level LTTE profile on his return to Sri Lanka grounded on his prior detention, arrests, monitoring by the CID, his false confession regarding his association with the LTTE and his illegal departure. The Authority relied on country information which indicated that a person with the applicant's profile did not face a real chance of harm on his return to Sri Lanka as a result of such imputed LTTE association or his support of the TNA. The Authority did not accept, when referencing the country information, that the applicant would face a real chance of harm if he returned to Sri Lanka on the basis that he was a failed asylum seeker.
8. At paragraphs [34] - [36] of the Authority Decision, the Authority accepted that the applicant did depart from Sri Lanka illegally. The Authority had regard to country information which indicated that it is likely that the applicant would be questioned and charged under the Immigrants and Emigrants Act, subsequently arrested, fingerprinted, photographed and transported to the nearest Magistrates' Court where investigations would be completed. However, the Authority also noted that the applicant would not be subjected to mistreatment and while he may be detained prior to appearing before a Magistrate, the applicant would receive a fine for his illegal departure and would not face a real chance of a custodial sentence. At paragraphs [36], [43] and [44] of the Authority Decision, the Authority found that detention in poor prison conditions for a number of days and the imposition of a fine, did not amount to serious or significant harm.
9. Accordingly, the Authority was not satisfied that the applicant met the criteria in ss 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate's Decision.

1. The applicant applied for judicial review of the Authority Decision on 12 January 2018. The applicant filed an Amended Application on 22 January 2025.
2. The Amended Application contains the following grounds for judicial review:
   1. The Authority's finding that the Applicant did not continue to be monitored by Sri Lankan authorities was illogical or irrational.
      1. The Authority's decision relied upon unwarranted assumptions, or alternatively made findings that went well beyond and could not rationally be supported by the country information and evidence before the Authority, in finding that to obtain a passport then he was no longer being closely monitored by the court or the [Criminal Investigation Division (CID)]": Decision [20].
      2. There was no logical or rational basis for these findings, with no available evidence before the Authority to make the assumptions about how the court or the CID operates.
      3. A finding about the methods employed by the Sri Lankan authorities granting (or not granting) passports to suspected Liberation Tigers of Tamil Eelam (LTTE) supporters could not be made simply as a matter of common sense or a reasonable appreciation of human experience.
      4. The unwarranted assumptions led to a finding that was illogical, irrational or not founded by probative evidence.
   2. The Authority failed to consider significant information before it and constructively failed to exercise jurisdiction in finding that the applicant was not a member of the LTTE.
      1. The Authority rejected the applicant's claim to have been an LTTE member because, in part, the information had been provided for the first time in his interview on 19 April 2017 and there was no explanation for why the information was provided "so late": Decision [10].
      2. The Authority overlooked an opening paragraph of the applicant's 7 December 2016 statement which stated "The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to Sri Lanka. I will provide further information in relation to my protection claims during my interview with the Department." This was jurisdictional error.
   3. The Authority erred in its construction and application of the requirements of s 473DD of the Migration Act 1958 (Cth) (the Act) with respect to whether the Authority should consider, as new information, a claim raised by the applicant.
      1. The Authority was not satisfied that the requirements of s 473DD of the Act were satisfied in relation to a new claim raised by the applicant: Decision [5].
      2. The Authority failed to exercise its statutory power in s 473DD of the Act on a correct basis with respect to whether the new information met the preconditions of s 473DD(b)(ii): CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] - [43].
   4. The Authority unreasonably considered, or failed to consider, exercising its discretion under s 473DC of the Act to get new information from the applicant.
      1. The Authority rejected the applicant's claim to have been an LTTE member and to have been given one month's basic training in Kilonochichi because, in part, the Applicant "failed to provide specific dates of his training and deployment or any details about his battalion or rank.": Decision [10].
      2. The Authority considered that it was not likely that the Applicant was sent to Kilinochichi for training based on country information that Kilinochichi was lost by the LTTE by September 2008: Decision [10].
      3. The delegate had not made findings about whether the Applicant was or was not an LTTE cadre based on the timing and location of his claimed training.
      4. The Authority did not have information before it about when the Applicant claimed to have trained in Kilinochichi, but knew (or ought to have known) that the Applicant could provide that information.
      5. The Authority's failure to get, or consider getting, information from the Applicant left the Authority with an 'informational gap'. It was legally unreasonable to find that it was "not likely that the applicant was sent [to Kilinochichi] for training" without getting, or considering getting, new information from the Applicant.
   5. The Authority failed to consider an essential integer of the Applicant's claim and, in doing so, did not discharge its statutory function of review.
      1. The Applicant claimed that while detained in 2009, Sri Lankan police officers had said the applicant was "probably a senior and experienced LTTE member." This claim was made in the applicant's 7 December 2016 statement at [19].
      2. The Authority did not deal with this statement or the Applicant's imputed profile as a "senior and experienced LTTE member".

5A. In the alternative to ground 5, the Tribunal's reasoning and finding that the Applicant is likely to be regarded as having a low-level LTTE profile on his return to Sri Lanka was illogical, irrational or legally unreasonable.

a. See ground 1(a).

1. The Authority accepted the applicant's account of what occurred during his detention: Decision [13].
2. Despite accepting that officers had expressed that the Applicant was "probably a senior and experienced LTTE member", the Authority did not explain how it reasoned or concluded that the Applicant is likely to be regarded as having a low level LTTE profile: Decision [25].

(a) an affidavit filed on 12 January 2018 which annexed a copy of the Authority Decision; and

(b) an affidavit filed on 22 January 2025 which annexed a copy of country information sources that were before the Authority and referred to throughout the Authority Decision.

1. The Minister filed a Response on 31 January 2018. The Response sought orders that the application be dismissed and orders as to costs on the ground that the Authority Decision is not affected by jurisdictional error.
2. The Minister also filed written submissions on 4 February 2025.

1. The hearing took place on 19 February 2025.
2. The applicant was represented by Ms McInnes of Counsel. The Minister was represented by Ms Cameron of Counsel.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. As already set out, the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. The Authority's review was conducted under Part 7AA of the Act.
2. Part 7AA of the Act provides a fast track review process in relation to certain protection visa decisions. Under Part 7AA, the Authority must review a "fast track review decision" made by the Minister refusing under s 65 to grant a protection visa to a "fast track applicant".
3. The presently relevant sections of Part 7AA are as follows.
4. Section 473DA provides as follows:

(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give a referred application any material that was before the Minister when the Minister made the decision under section 65.

1. Division 3 of Part 7AA (together with ss 473GA and 473GB) is therefore taken to be an exhaustive statement of the requirements of the natural justice rule in relation to a review conducted by the Authority: s 473DA(1).
2. Section 473DB(1) provides as follows:

Immigration Assessment Authority to review decisions on the paper

(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a) without accepting or requesting new information; and

(b) without interviewing the referred applicant.

(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a) were not before the Minister when the Minister made the decision under section 65; and

(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65;

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. In considering the exercise of the discretion to invite an applicant to give new information, especially at interview under s 473DC(3)(b), Kiefel CJ, Bell, Gageler and Keane JJ in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 stated at [3]:

The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.

(Footnotes omitted).

1. The correct approach to considering new information pursuant to s 473DD was set out in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 where, at [11] - [12] the High Court said:

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

(Footnotes omitted).

1. By Ground 1 the applicant submits that the Authority's finding that the applicant did not continue to be monitored by Sri Lankan authorities was illogical or irrational.

1. The applicant submits that the Authority Decision relied upon unwarranted assumptions, or alternatively made findings that went well beyond, and could not rationally be supported by, the country information and evidence before the Authority, in finding that "if the applicant was able to obtain a passport, then he was no longer being closely monitored by the court or the CID": Authority Decision, [20]. It is submitted that the Authority similarly reasoned at paragraph [25] of its decision that "the requirement to be monitored had ceased by 2011 because the applicant was able to obtain a valid travel document." The applicant submits that the assumption that in 2011 Sri Lankan authorities would not grant a passport to a person who was being monitored by the CID or the court is no more than speculation. The applicant submits that there is no basis in the country information before the Authority for the assumptions about the way the Sri Lankan authorities operated.
2. Further, the applicant submits that there is no evidence of the Authority having personal knowledge of, or familiarity with, experiences in dealing with obtaining a passport in Sri Lanka as a person with suspected LTTE links. A finding about methods employed by the Sri Lankan authorities in granting (or not granting) passports to suspected LTTE supporters could not be made simply as a matter of common sense or a reasonable appreciation of human experience.
3. Accordingly, the applicant submits that the unwarranted assumptions led to a finding that was illogical, irrational or not founded by probative evidence and centrally contributed to the erroneous conclusion that the applicant was no longer of interest to the authorities by 2011 and was therefore likely to be regarded as having a low level LTTE profile upon his return to Sri Lanka.

1. The Minister submits that the significance of the finding that the applicant was able to obtain a passport must be considered in the light of the finding previously made by the Authority that the applicant was not subject to formal reporting conditions after being released from jail in 2010: Authority Decision, [16]. The Authority made that finding on the basis that the applicant:

(a) had no documentation and there were no other records to support his account of his release or reporting conditions;

(b) was relatively briefly detained, he was not sent to rehabilitation, and no conviction was recorded so it was unclear why formal reporting conditions would have been made; and

(c) had not provided any details about the process of reporting to the court or how long this requirement was in place for.

1. The Minister submits that the Authority accepted at paragraph [19] of its decision that the applicant came to the attention of the army when putting up posters for a TNA candidate during the April 2010 elections and was required to register and report from time to time at the army camp after that. The Minister submits that the Authority's findings at paragraph [20] that the applicant was no longer subject to reporting because he was able to obtain a passport were only related to the finding that the applicant was required to report to the army camp from time to time.
2. The Minister further submits that it was open to the Authority to find that the applicant would not be issued with a passport if he was still being monitored based on country information. The Miniter submits that country information for Sri Lanka noted that stop/watch lists were being maintained by Sri Lankan authorities, the issuance of passports were being restricted to certain groups and people of interest were being stopped from departing Sri Lanka at the airport. The Minister submits that this is a finding that a reasonable decision-maker could have made based on the material before the Authority.
3. Finally, the Minister submits that any error in finding that the applicant would not have been issued with a passport if he was being monitored was not material to the finding that the applicant was not being monitored. Nor, it is submitted, was it material to the overall finding that the applicant does not face a real chance of harm based on his association with the LTTE, as a Tamil from the north of Sri Lanka who supported the TNA, or any combination of these circumstances.

1. The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to "extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal": Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
2. As submitted by the applicant, the making of "unwarranted assumptions" in finding a claim to be implausible may establish that a finding is illogical, irrational or not founded on any probative evidence: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [36]; BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) at [7]. A party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the finding is not one that a reasonable decision-maker could make based on the material before it and nor it is one that the decision-maker could have made drawing on their personal or specialised knowledge about the subject matter: BOH17 at [8]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 at [39] (citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403 at [17] - [21]). The question for the Court is whether the assumption has an evident and intelligible basis: BOH17 at [8]
3. It is useful to briefly restate the findings made by the Authority at paragraphs [12] - [16] and [19].
4. At paragraph [12] - [14] the Authority accepted that in February 2009 the applicant was arrested and detained at Omanthai police station. The Authority accepted that in March 2009 he was taken to the Magistrates' Court at Vavuniya and discharged to a refugee camp, where he was held on remand and subject to monitoring by the Garam Savaka who reported to the CID.
5. At paragraph [15] the Authority accepted the applicant's claims regarding his second arrest, interrogation and detention in Kandy jail in 2009. At paragraph [16], the Authority further accepted that the applicant was released in 2010 after approximately one year, however, it did not accept that this release was subject to formal reporting conditions. The reasons for this are set out in paragraph [50] above.
6. At paragraph [19] the Authority accepted that the applicant had come to the attention of the "army" while putting up posters supporting the TNA and was required to register and report to the army camp from time to time. I note that the applicant's claim was that he had come to the attention of the CID (rather than the army) and as a result was required to register and report to the army camp from time to time.
7. At paragraph [20] the Authority said:

The applicant has provided evidence that he was able to obtain a passport from the passport office in Colombo in 2011. He says that he did this because he was thinking of leaving Sri Lanka. In order to obtain a passport he would have had to travel to a major town and have supporting documentation. I consider that if he was able to obtain a passport then he was no longer being closely monitored by the court or the CID. I do not accept that the applicant was still subject to formal monitoring in 2011 because he was able to obtain a valid travel document.

I accept that the applicant is likely to be regarded as having a low level LTTE profile on his return to Sri Lanka. This is based on him previously being arrested and detained under the PTA in 2009, being monitored by the CID for TNA support during the 2010 elections and departing the country illegally in 2012. He fears that if he returns to Sri Lanka he will be detained, interrogated, tortured or killed. I accepted that the applicant did not fight for the LTTE but confessed to supporting the LTTE after being detained and tortured. He was arrested in 2009 jailed and released in 2010 on his father's surety. He was also required to sign in at the army camp. The requirement to be monitored had ceased by 2011 because the applicant was able to obtain a valid travel document. He did not come to the attention of the authorities again until after he left Sri Lanka illegally and they visited his family home to look for him.

1. Accordingly, I consider that the reference in paragraph [19] that the applicant had come to the attention of the "army", ought be read as a reference to the CID. I also consider that notwithstanding that the Authority found that the applicant was not monitored following his release from Kandy jail in 2010, the Authority accepted that the applicant was again monitored as a result of his support for the TNA in the 2010 elections. I consider this is so as a result of the Authority finding in paragraph [25] that the applicant was "being monitored by the CID for TNA support during the 2010 elections" and that "The requirement to be monitored had ceased by 2011...".
2. It is also clear that the Authority found that monitoring of the applicant ceased in 2011 as he was able to obtain a passport. So much is evident from the use of the word "because" in the final sentence of paragraph [20] and the penultimate sentence in paragraph [25].
3. I reject the Minister's submission that country information supports the Authority's reasoning that the applicant was no longer subject to monitoring in 2011 because he was able to obtain a passport. In written submissions the Minister relied upon the following country information:

(a) section 1.2.4 of the Report of a Home Office Fact-Finding Mission: Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE), conducted 11-23 July 2016 (2016 Home Office Report);

(b) section 1.2.15 of the 2016 Home Office Report;

(c) section 32.1.4 of the 2016 Home Office Report;

(d) section 3.29 of the DFAT Country Information Report Sri Lanka, 24 January 2017 (2017 DFAT Report); and

(e) section 5.37 of the 2017 DFAT Report.

1. The full text of these sections is set out in Annexure A to this judgment.
2. Section 1.2.4 of the 2016 Home Office Report provides that a human rights defender was detained in 2014 and upon release was subject to a court order compelling him to obtain permission of the Magistrates' Court each time he sought to leave the country. It also provides that his name was placed on a stop list at the airport both upon arrival and departure. Accordingly, section 1.2.4 does not deal with the issuance of passports to persons subject to monitoring by the CID. Further, it is specific to a human rights defender, being a class of persons of which, on the material before the Court, the applicant was not a member. It is also not clear if the human right defender was a Sri Lankan national. Finally, the report was prepared in 2016 and refers to an incident in 2014. It says nothing about the circumstances in 2011.
3. Section 1.2.15 of the 2016 Home Office Report is under the heading "How easy is it to obtain a passport illegally?" and addresses the circumstances in which persons might feel the need to obtain a passport illegally; being, if they need to falsify their age to obtain employment, if they are on a watch/stop list, for political reasons or if they have been deported from a country they wish to return to. Accordingly, section 1.2.4 does not deal with the issuance of passports to persons subject to monitoring by the CID but rather sets out when a person may seek to illegally obtain a passport. It says nothing about what the Sri Lankan authorities may do. This has no application to the applicant's circumstances.
4. Section 32.1.4 of the 2016 Home Office Report provides that the Sri Lankan government has overturned an earlier Circular depriving the issuance of passports to person who have sought asylum in other countries allowing any Sri Lankan citizen to return. Accordingly, section 32.1.4 also does not deal with the issuance of passports to persons subject to monitoring by the CID but rather addresses the ability of Sri Lankan citizens who have sought asylum in other counties to return to Sri Lanka. Again, this has no application to the applicant's circumstances.
5. Section 3.29 of the 2017 DFAT Report provides that Sri Lankan authorities collect and maintain intelligence on former LTTE members and supporters, including stop and watch lists. It further provides, amongst other things, that stop lists include the names of persons that have an extant court order, arrest warrant or order to impound their Sri Lankan passports. It further provides that there are claims that those on watch lists travelling from the United Kingdom have been detained on arrival at the airport and are likely to be monitored. Section 3.29 therefore reflects the position in 2017 not as at 2011, deals with stop and watch lists and also appears to support an inference that monitored persons may have Sri Lankan passports.
6. Section 5.37 of the DFAT Report provides that Sri Lankans without passports are able to enter Sri Lanka on temporary travel documents and that rehabilitated former LTTE members do not face any legal restrictions when obtaining a passport. Section 5.37 therefore deals with groups of persons to whom the applicant does not belong.
7. Accordingly, none of the country information before the Authority and relied upon by the Minister supports the Authority's reasoning that the applicant was no longer subject to monitoring in 2011 because he was able to obtain a passport. In oral submissions the Minister submitted that the "general tenor" of the country information described persons being stopped at the airport and obtaining passports illegally. In my view, it is implicit in this submission that the country information does not support the Authority's reasoning. The Authority's finding that the applicant was no longer monitored by the CID in 2011 because he was able to obtain a passport was therefore not a finding that a reasonable decision-maker could have made on the material before it. Further, there is no evidence before the Court that the Authority could have made the finding drawing on their own personal or specialist knowledge of the issuance of passports and persons subject to monitoring by the CID in Sri Lanka in 2011. As such, I accept the applicant's submission that the Authority's finding in this regard was illogical or irrational and not founded on probative evidence.

1. The Minister submits that even if it is found that the Authority's finding that by 2011 the applicant was no longer monitored because he was able to obtain a passport is attended by illogicality or irrationality, it is not material. In support of this submission, the Minister relies on paragraph [26] and [28] of the Authority's decision.
2. The threshold for materiality is not demanding or onerous: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152 (LPDT) at [14]. The question is whether the decision that was in fact made could realistically have been different had the error not been made: LPDT at [7] and [14]. A realistic possibility of a different outcome is one that is not fanciful or improbable: LPDT, [14].
3. At paragraph [26] the Authority said:

The most recent UK Home office report of 2017 opines that a past connection to the LTTE would only give rise to international protection where the person has or was perceived to have a significant role in the LTTE or if they are or perceived to be active in post conflict Tamil separatism and thus a threat to the state. DFAT reports that in 2017 Sri Lankan authorities remain sensitive to potential re-emergence of the LTTE and consider those at highest risk of arrest, detention or prosecution are the LTTE's former leadership. Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are not likely to face adverse harm on the basis of those past connections. This assessment is consistent with the recent opinion of the UK government and I am satisfied that the applicant does not fit this profile.

(Footnotes omitted).

I have considered whether the applicant faces a real chance of serious harm if returned to Sri Lanka on the basis of his identity as a Tamil from the north who has previously been identified as having been associated with the LTTE both personally and through his missing sister. DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly since the Sirisena Government came to power in 2015. DFAT reports that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased. It is reported that the Sri Lankan police are now responsible for civil affairs across the country. Whilst a largely idle military presence remains in the former LTTE-controlled areas, these officers are generally restricted to their barracks. Members of the Tamil community have described a positive shift in the nature of their interactions with the authorities, including feeling able to question their motives or object to monitoring. The applicant's links and perceived links with the LTTE are now distant in time and low level in nature. He has close family living in the north of Sri Lanka and they do not appear to have faced any harm since the conclusion of the conflict. I am not satisfied that the applicant faces a real risk of serious harm if he returns to Sri Lanka as a Tamil from the north with a former association with the LTTE.

(Footnotes omitted).

1. I reject the Minister's submissions. As submitted by the applicant, the Authority made assumptions about how the Sri Lankan authorities operate without evidence and disbelieved the applicant's claims based on those assumptions. Fundamental to the Authority's findings that the applicant did not face a real risk of harm should he return to Sri Lanka was a finding that the applicant was no longer of interest to the authorities by 2011 and his links to the LTTE were low level. As submitted by the applicant, the illogicality or irrationality in the Authority's reasoning centrally contributed to this finding. Accordingly, the decision could realistically have been different had the error not been made.
2. Ground 1 therefore discloses jurisdictional error on the Authority's behalf.

1. Having found that Ground 1 establishes jurisdictional error on the Authority's behalf it is not necessary that I consider the remaining grounds advanced by the applicant.

1. It follows from the above that a writ of certiorari issue to quash the decision of the second respondent and a writ of mandamus issue directed to the Administrative Review Tribunal requiring it to review the decision according to law.
2. The applicant seeks that the Minister pay their costs. I shall order that the Minister pay the applicant's costs in an amount to be fixed if not agreed.
3. The Minister seeks orders amending the name of the first respondent to "Minister for Immigration and Multicultural Affairs". I shall order accordingly.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

ANNEXURE A

Report of a Home Office Fact-Finding Mission, 'Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE)', Conducted 11 - 23 July 2016.

...

1.2.4 Another human rights defender was arrested under the PTA [Prevention of Terrorism Act] and detained for 2 days in 2014, when he was on a fact-finding mission regarding the arrest of a family member who had disappeared in the North. Subsequently he was released but the police obtained a court order compelling him to obtain the permission of the Magistrate's Court every time he was leaving the country. Then his name was placed on the stop list at the airport both at the arrival and the departure, so he was automatically stopped at the counter and referred to a desk of the Terrorist Investigation Department of the Police at the airport. However, he is able to travel freely now.

...

1.2.15 Some people may feel the need to obtain a passport illegally if they need to falsify their age to obtain employment; if they are on a watch/stop list; or if they have previously been deported from a country they wish to return to; or for political reasons.

...

32.1.4 The Deputy Minister also informed that an earlier Circular depriving issuance of passports to those who have sought asylum in other countries has been overturned as Sri Lanka's Constitution guarantees and allows the return to Sri Lanka of any Sri Lankan citizen.

Department of Foreign Affairs and Trade, 'DFAT Country Information Report Sri Lanka', 24 January 2017.

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3.29 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK's Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including 'stop' and 'watch' electronic databases. 'Stop' lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. 'Watch' lists include names of those individuals that the Sri Lankan security services consider to be of interest, including due to separatist or criminal activities. Those on a watch list are not likely to be detained, although there have been some media reports claiming that individuals, mostly Tamils, travelling from the United Kingdom have been detained on arrival at the airport. DFAT has not been able to verify these reports but notes that those on a watch list are likely to be monitored.

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5.37 Sri Lankans without passports are able to re-enter the country on temporary travel documents (also known as an Emergency Passport or a Non-Machine Readable Passport) issued by diplomatic and consular missions. Temporary travel documents are valid only for re-entry to Sri Lanka. Rehabilitated former LTTE members do not face any legal restrictions when obtaining a passport.