AEQ21 v Minister for Immigration and Citizenship [2026] FCA 264

1. The first respondent must pay the appellant's costs of the appeal, to be assessed by a Registrar of the Court if not agreed.

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

1. This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) concerning an application for a protection visa.
2. The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia, as what was known as an unauthorised maritime arrival, in March 2011. In January 2016 he applied for an XE-790 Safe Haven Enterprise visa (SHEV).
3. A delegate of the first respondent (Minister) refused the application in September 2017, and on 17 December 2020 the Administrative Appeals Tribunal affirmed the delegate's decision. The appellant sought judicial review of that decision in the Circuit Court. On 2 November 2022 a judge of that court dismissed the application. The appellant now appeals from that decision.
4. There are three grounds of appeal (the original ground 1 in the notice of appeal has been abandoned so the remaining grounds are numbered 2 to 4). Grounds 2 and 4 seek to challenge the Tribunal's approach to making credibility findings about the appellant. Ground 3 is based on what is said to have been a failure by the Tribunal to deal with an argument put by the appellant.
5. Ground 3 and, it emerged at the hearing, ground 4, advanced errors on the part of the Tribunal which had not been agitated before the primary judge. Hence the appellant needed leave to pursue them in this appeal. However, for the following reasons I have determined that the appeal will be upheld on the basis of ground 2, so that leave to pursue the other grounds need not be considered.

Introduction to ground 2 - the Tribunal's credibility findings

1. Ground 2 contends that the Tribunal relied on illogical findings of fact that were the result of its failure to consider relevant evidence and so, based on those findings, it made a credibility finding that was unreasonable, irrational or illogical.
2. The ground is supported by numerous particulars. It is not necessary to set them out. In essence, the ground concerns what is said to be the Tribunal's finding that the appellant had not appropriately disclosed 'basic facts of his early life in Sri Lanka'. This is said to have led the Tribunal to decide not to give the appellant the benefit of any doubt to the extent that his evidence relates to these aspects of his claims.
3. Just what those 'basic facts' and their asserted significance were is not clear from the particulars or, as will be seen, from the Tribunal's reasons itself. This will be explored below. But it can at least be said that they seem to have concerned the appellant's upbringing, and who he lived with and was raised by when he was a minor.
4. In order to make sense of this, it is best now to focus on the material that the appellant put before the Tribunal concerning his upbringing to see how it was relevant to his protection claims, and then to review the aspects of the Tribunal's reasons that are relevant to this ground, before looking at the reasoning of the primary judge.

The appellant's claims concerning his place in his family

1. Broadly, an important aspect of the appellant's claims for protection was that he said he feared adverse interest from the Sri Lankan authorities should he return to that country because they would consider him to have been a member of the Liberation Tigers of Tamil Eelam (LTTE) or affiliated with it.
2. Other matters necessary to understand this ground are that the appellant's parents divorced when he was very young and his mother remarried. As a result the appellant had two stepbrothers and one stepsister. It was apparently uncontroversial or, at least, not rejected by the Tribunal, that during the Sri Lankan civil war involving the LTTE that ended in 2009, one of the stepbrothers was killed and the other suffered a spinal injury, eventually receiving surgery in India but being unable to walk.
3. In that context, the appellant made a specific claim, repeatedly, in statements and submissions put before various decision makers, which were all collected in the materials before the Tribunal.
4. The first record before the Tribunal in which the claim was made was a statutory declaration by the appellant (through a translator) which was attached to his original application for a determination of protection obligations, dated 14 April 2011. It commences as follows:

Background:

My name is [appellant's name] and I am a 28 year old male born in [village name] [district name] Sri Lanka. My ethnicity is Tamil and my religion is Catholic. I am married. I married on 2005 in [village name]. I have one child. My wife and child are in Sri Lanka. I have two step brothers and one step sister. My eldest step brother is deceased. He died while fighting in the war in Mullivaaikal in about 2009. The war between the Sri Lankan Army and the Tamil Tigers was very intense in our area. He was crossing the river with my mother while relocating to a safer place when he was hit and killed by shrapnel from a bomb. My parents separated after I was born. I then lived with my mother. My father died in March 2011. My Mother and her husband are alive and live in Sri Lanka.

Why I left my country:

In about 2009, I decided to leave Sri Lanka as I was in fear for my life. There was a fierce war between the Tamil Tigers and the Sri Lankan Army. The Sri Lankan Army suspected me as the person who is involved with LTTE activities. This was because the LTTE policy was that one member of each family must join and support them. As my eldest step brother had been killed by shrapnel, and my other step brother is injured, the Sri Lankan Army thought I must be supporting the LTTE as there was no one else in my family to do so. On several occasions, the Sri Lankan Army came to my house to search for me. I was in constant fear and I never knew when they might come.

1. Thus the appellant claimed that the Sri Lankan Army would suspect him of LTTE involvement because of an asserted policy by the LTTE to make one member of each family join them, where the death and injury of his two stepbrothers meant that he would be assumed to be that family member.
2. In a record of a 'Protection Obligations Evaluation Interview' conducted with the appellant through an interpreter on 17 April 2011, when explaining why he left Sri Lanka the appellant said 'The LTTE had taken one member of each family by force.' A little later, the following exchange appears:

Why would the [Sri Lankan Army] arrest you? One brother has died because of the shelling and another brother was in the Sri Lankan camp and has been released after my other brother's death. He has injuries that required attention in India. He has since returned to S/L. I will be targeted because one brother has died and one has been injured. The [Criminal Investigation Department] were looking for the oldest person in the family - they only know about the injured brother. So they will look for me. The [Eelam People's Democratic Party] is working with the CID and the may come to know that my brother was in LTTE Cadre they will kill him.

I need to be clear on why they would look for you and I cannot make that connection. As the Government knows at least one person per family from the Vanni area will be in the LTTE. As my brother is severely injured they will look at me as the other family member who could be in the LTTE.

Was your dead brother in the LTTE? No. So the injured brother is in the LTTE? Yes

Did you have concerns when he joined the LTTE? Yes he was forced; the LTTE came at night and recruited one family member. They are taken to the training camps. Confirm 2007? Yes.

1. There are also handwritten notes in the record of interview from which it appears that the appellant said that the LTTE would target '1 family member' and that the Criminal Investigation Department (CID) was 'looking for the oldest person in family' noting that one of the appellant's brothers was deceased and another brother was injured. Another handwritten note appears to record the appellant as saying again that his brother was 'injured whilst in LTTE' and '[Sri Lankan Army] will target claimant as families [sic] representative to LTTE force'.
2. In the same interview the appellant said that he was 3 to 5 years old when his mother remarried.
3. Similarly, in a submission on behalf of the appellant provided on 1 December 2011 in relation to an Independent Protection Assessment, it was said:

According to the LTTE rules a member of each family has to support them. The Applicant eldest step brother was killed by shrapnel and his other step brother was injured, and therefore the [Sri Lankan Army] suspected the Applicant is supporting the LTTE.

1. The same submission had this to say about the appellant's living arrangements during his childhood:

The Applicant [sic] were separated after his birth, he then lived with his mother. The Applicant father died in March 2011 and his mother is currently residing with her current husband in Sri Lanka.

1. The claim that the Sri Lankan Army or the CID would pursue the appellant because, in effect, he was the eldest able-bodied male in the family after his stepbrothers were killed or injured was also made in an interview with the Independent Protection Assessor on 5 December 2011.
2. In an undated statutory declaration made in support of the appellant's application for a SHEV to which the Tribunal ascribed the date 5 February 2016, the appellant said 'My parents separated after I was born. I then lived with my mother. My father died in March 2011'. It also repeated the same claim based on the contention that LTTE policy 'required one member of each family to join and support them'.
3. A submission dated 29 August 2017 prepared by the appellant's lawyers in support of the SHEV application repeated the claim that because 'his other family members' had sustained serious injuries the Sri Lankan authorities would assume the appellant as 'the most able-bodied member of his family' had been 'chosen to assist the LTTE'.
4. A submission prepared by the same lawyers and provided to the Tribunal, dated 23 September 2020, had this to say about the appellant's family situation:

The Applicant's father is deceased. His parents separated when he was young. His mother remarried; his siblings are his half siblings. The Applicant's half-brother [name] is deceased. He was killed during the conflict in Sri Lanka. His [other] half-brother [name]'s whereabouts is currently unknown. The Applicant's mother, stepfather and half-sister remain in Sri Lanka.

1. That submission did not, however, repeat the claim about the Sri Lankan authorities assuming that the appellant as the eldest able-bodied male in his family would have been made to join the LTTE. It is convenient henceforth to call that the LTTE family member claim.
2. The appellant attended hearings before the Tribunal on 29 September 2020 and 26 October 2020. In between those two hearings, on 19 October 2020, the appellant made another statutory declaration to the Tribunal. This repeated the LTTE family member claim. As to the appellant's living arrangements growing up it said:

I was born in [village name], [district name], Northern Province, Sri Lanka on [birthdate] 1983. I am currently 37 years of age. My father is deceased. He passed away in 2011. My parents separated when I was young. My mother remarried. I have two half brothers and one-half sister. The term step sibling has been used throughout the immigration process however we have the same mother. [Stepbrother name] was killed in 2009. I am unaware of the current whereabouts of my brother [other stepbrother name]. My mother, half-sister and stepfather reside in Sri Lanka

1. It would appear from the Tribunal's reasons that at the hearing of 26 October 2020, the Tribunal took a personal history from the appellant which revealed that the appellant's living arrangements as a child were materially different, in the Tribunal's view, to those that he had described before that time. The Tribunal's opinions about this will be set out below. But it can be inferred that it expressed concerns about this and several other matters, because on 17 November 2020 the appellant's solicitors wrote to the Tribunal making submissions about the points of concern and enclosing a further statutory declaration.
2. In so far as the written submission concerned the living arrangements it said:

The Applicant explained at his hearing that he lived with his grandmother. He also explained that he spent time with his mother, stepfather, and half siblings at least once a week, given they lived close to him. The Applicant instructs that although he did not live with his mother, step father and half siblings on a permanent basis, he had a close connection with them and is considered to be a member of their family, given his biological connection to his mother. We submit that the applicant's assertion that his risk profile is greatly enhanced by his brother's confession to the Authorities that he was an LTTE affiliate is highly plausible. Moreover, given his brother has now fled the country, we submit that it is conceivable the applicant would be interrogated about his brother's whereabouts if returned to Sri Lanka, further enhancing his risk profile. Given these matters, we submit the fact the applicant did not live with his mother, stepfather and half siblings does not detract from his fear of harm due to his connection to them.

1. The statutory declaration that accompanied this submission, also made on 17 November 2020, relevantly said:

Contact with mother, stepfather, and siblings in Sri Lanka

1. I wish to clarify that while I lived with my grandmother after my parents separated, I spent time with my mother, stepfather, and half siblings at least once per week. As explained at my hearing, they would come and visit me. They lived approximately five kilometres away, it was easy for them to come and visit. Even though I did not live with them on a permanent basis, I am still a part of their family and have a close connection with them. I do not believe the fact I did not live with my mother, stepfather, and siblings, reduces the risk I would be harmed upon return to Sri Lanka. The Authorities consider me to be a part of their family. The fact [brother's name] advised the Authorities while he was detained that I was member of the LTTE, makes me feel very scared about returning to Sri Lanka. I am also worried I will be interrogated by the Authorities, if returned to Sri Lanka, about his whereabouts given he has now fled the country.

1. It will be observed that these later materials focus on a claim that one stepbrother informed on the appellant and do not connect the question of his living arrangements with the LTTE family member claim. That claim was not repeated in the materials submitted to the Tribunal on 17 November 2020.

1. The Tribunal published its reasons for affirming the decision to refuse the SHEV on 17 December 2020. Near the beginning of the reasons is a long summary of the principles that should guide decision makers in assessing the credibility of asylum seekers, which the appellant does not criticise.
2. When it turned to the specifics of the appellant, the Tribunal noted that it had received a summary of his protection claims which included that he feared harm from the Sri Lankan authorities on the basis of imputed political opinion as an LTTE supporter. The Tribunal summarised what it described as a 'detailed personal history' it took from the appellant as follows:
   1. ... He is the only child of his mother's first marriage. In the late 1980s, when the applicant was three or five years of age, his parents separated. Shortly after this, the applicant resided with and was raised by his maternal grandparents in the village of [village name]. The applicant remains close to his maternal extended family, having grown up with his uncle and four aunts and having lost contact with his father prior to that individual's death in 2011. Eventually, the applicant's grandmother moved in with one of her daughters, an aunt of the applicant, in [same village], after the death of the applicant's maternal grandfather.
   2. During his youth, the applicant was visited on approximately a weekly basis by his mother, and occasionally his stepfather. They lived in a village approximately five kilometres away and raised a separate family, the applicant's two step-brothers and one step-sister.
3. The Tribunal then described the appellant's subsequent personal history upon reaching adulthood, in terms that need not be recounted here.
4. The Tribunal then quoted selected excerpts from the appellant's statement of 5 February 2016 in support of the application for a SHEV, his statutory declaration of 19 October 2020 and his statutory declaration of 17 November 2020. This was all under the heading of 'Tamil identity (Race)', which addressed the appellant's claim to fear harm on return to Sri Lanka because of his Tamil ethnicity. The excerpts quoted did not include the parts where the LTTE family member claim was made.
5. When the Tribunal turned to make findings about this first head of claims, it said the following:
   1. Based on the foregoing evidence I find that the applicant is a Tamil male from northern Sri Lanka. From a young age, following the separation of his parents, the applicant was raised by his maternal grandparents in [village name] and he had minimal contact with the second family of his mother. The applicant's contact with his mother's second family was limited to routine visits, mainly by the applicant's mother, to the applicant's home.
   2. It is significant that the applicant failed to disclose the true facts relating to his being raised by his maternal grandmother in Sri Lanka from a tender age following the separation of his parents until he was closely questioned at the second hearing before the Tribunal on 26 October 2020. It is not sufficient to answer this lack of candour for the applicant to state that he was not asked before that time. Especially when the applicant has sought to colour his own claims by a narrative implying, as it clearly and consistently did before all prior tribunals of fact leading to the present review, that the applicant formed part of his mother's second family unit. This failure to fully and candidly disclose the basic facts of the applicant's life in Sri Lanka puts much of his evidence relating to the second family of the applicant's mother into a different light. It also suggests that the applicant's evidence lacks credibility in material respects. I find, therefore, that the applicant has not appropriately disclosed or characterised the basic facts of his life in Sri Lanka as these relate to his mother or his mother's second family. Consequently, I find that it is not appropriate in the circumstances to give the applicant the benefit of any doubt to the extent that his evidence relates to those aspects of the applicant's claims.
6. These are the credibility findings that are the subject of ground of appeal 2. I interpolate at this point that, to a person reading the reasons without the benefit of looking at the submissions and other materials before the Tribunal, these findings are somewhat mystifying. It is not clear to a reader of the reasons alone why the Tribunal finds the appellant's 'lack of candour' so significant. Whether the additional context of the materials before the Tribunal nevertheless provides a rational and reasonable basis for the findings will be considered below.
7. To return to the Tribunal's reasons, after making further findings concerning the appellant's personal history as an adult, it then turned to consider the evidence under a different heading of 'Imputed Political Opinion as a LTTE supporter/sympathiser/member'. It quoted long passages from each of the statement and two declarations just mentioned, only this time including passages that made the LTTE family member claim. Much of what it quoted had already been quoted in the previous section. The only mention of the circumstances of the appellant's upbringing as a child to be found in the passages quoted in this second section is a brief statement that, when he was living with his grandmother after his parents separated, he saw his mother, stepfather, and step-siblings 'at least once per week'.
8. At the end of quoting these passages the Tribunal once more turns to make findings. But it does not make any findings about the LTTE family member claim.
9. At paragraph 95 the Tribunal made the following finding, on which the Minister relies:

The fact that the applicant's mother and stepfather may have experienced official harassment aimed at discouraging valid legal claims against the Sri Lankan Army suggests official harassment and discrimination against the Tamil individuals in question, but this family unit does not, and never has, included the applicant personally given that he was raised in another village by his grandmother.

As indicated above, the applicant gave evidence (after close questioning about the circumstances of his previous life in Sri Lanka) at the second hearing on 26 October 2020 to the effect that he had effectively been raised by his maternal grandmother, sometime after his parents separated. Depending on which statement of the applicant one relies upon, this was either some months after his birth or at three, or five years age. Thereafter, his contact with his mother and her second family was regular-but took the form of visits to the home of the applicant's grandmother. This was a materially different narrative to the one established by the applicant in all of his previous personal statements throughout his applications for protection in Australia since 2011.

1. It then set out the paragraph from the appellant's statutory declaration of 17 November 2020 that is at [29] above. And it then said:
   1. The applicant has been outside of his receiving country since some time in 2009 and has been an applicant for protection in this country since his unauthorised maritime arrival in 2011. The basic facts of a person's life are things about which a straightforward and credible narrative can reasonably be expected to be provided by an applicant holding a subjectively genuine well‑founded fear of harm in a country of origin. Despite this, the basic facts of his life in Sri Lanka throughout the bulk of the time during which the applicant and his family were impacted by the violent civil war in that country were not clearly articulated in any forum until 26 October 2020, and even then, only after close questioning. This failure by the applicant to fully disclose the basic facts of his early life in Sri Lanka at the first practicable opportunity does not appear to be reasonable in all the circumstances.
   2. The applicant's pre-26 October 2020 personal narrative conflates his own lived experience with that of the personal lived experience of his mother's second family. This is perhaps understandable on a human level, but it lacks persuasive force in the context of the present application when viewed in context, including the absence of appropriate corroborating evidence. Accordingly, some care is required when considering the basis of the applicant's claims for protection in Australia, now and in the reasonably foreseeable future.
   3. While I have had regard to the applicant's evidence relating to the lived experience of the second family of the applicant's mother, I do not accept that anything arising from the lived experience of that second family gives rise to the applicant being imputed with a particular profile of interest to the Sri Lankan authorities for any reason arising from actual or imputed LTTE affiliation.
2. After making further findings about the appellant's personal history as an adult, the Tribunal declined to accept his claim that he was a person of interest to the Sri Lankan authorities.
3. Then, after setting out the evidence in relation to another basis of the protection claim, which need not be considered, the Tribunal turned to consider some of the submissions that had been made on the appellant's behalf. The Tribunal said:
   1. ... as discussed above, the variances in the applicant's personal narrative over time go beyond mere embellishments. Perhaps for understandable reasons, the applicant sought from the earliest stages of his application process, to characterise his life in Sri Lanka as having been raised by his mother and stepfather. That family unit suffered much in the Sri Lankan civil war by all accounts. They also may have had personal involvement in the LTTE through one of their children. The applicant also sought for a considerable time to characterise his marital status as having been cruelly separated from his spouse and son by the same ethnically motivated civil war. This too is understandable. However, the late disclosure that these central facts about core aspects of basic circumstances of the applicant's life were materially misstated are things about which an applicant could reasonably be expected to clarify at the first reasonable opportunity. The applicant did not take any steps to clarify these central facts of his life in Sri Lanka prior to being closely questioned on 26 October 2020.
   2. For this reason, it has been necessary to make findings above relating to the credibility of some aspects of the applicant's central narrative, evidence and claims. I am satisfied that these findings are appropriate. However, I have refrained from making any findings about the credibility of the applicant himself on this occasion.
4. Then under the heading 'Analysis' the Tribunal moved to determining each of the grounds on which the appellant claimed protection. After setting out country information, it rejected the claim that the appellant would face a real risk of serious harm on return to Sri Lanka on account of his Tamil ethnicity. It then determined the claim that the appellant would risk harm as a result of imputed political opinion as an LTTE supporter, sympathiser or member. It appears to have done so by setting out (at para 142) in brief summary the findings it had already made. These include that the appellant's 'evidence relating to the basic facts of his life before 2009 in Sri Lanka and relevant events in Sri Lanka post 2009 lacks coherence'. The summary concluded as follows:

d) In particular, the applicant's sworn statements about the nature of his relationship with his mother's second family has lacked transparency and clarity over time. This failure by the applicant to fully disclose the basic facts of his early life in Sri Lanka at the first reasonable opportunity does not appear to be reasonable in all the circumstances. I do not accept that anything arising from the lived experience of the second family of the applicant's mother gives rise to the applicant being imputed with a particular profile of interest to the Sri Lankan authorities for any reason arising from actual or imputed LTTE affiliation. > > e) I accept that the applicant may be imputed with generalised LTTE support given his lengthy membership of the Sri Lankan Tamil diaspora. > > f) I do not accept that the applicant's claims to be a person of continuing interest to Sri Lankan authorities after his lawful departure to India in 2009 are credible.

5. For some reason it is only after this that the Tribunal set out country information relevant to this aspect of the appellant's claims, but it did so without comment and without relating the information to any findings. It then turned to consider the third head of the appellant's claims, in a manner that need not be described.
6. The Tribunal's reasons then finish with a brief summary of its conclusions.

The reasoning of the primary judge as to ground 2

1. The appellant was legally represented in the proceeding before the primary judge. In his ex tempore judgment, his Honour recorded that, by ground of review 2, which corresponds to ground of appeal 2, the appellant contended that the Tribunal had made a credibility finding that was unreasonable, irrational or illogical in the all the circumstances. His Honour explained (at [36]) that this ground was:

based upon a finding by the Tribunal that the Applicant had not been fully frank with the department about his early life. The Applicant says that such a finding is illogical because the Applicant had always given his address and had not sought to hide his early life but had never particularly been asked. The Applicant clarified everything in his October or November 2020 statutory declaration.

1. In his own reasoning about this ground, the primary judge said (at [38]) that it was necessary to 'look at what the Tribunal actually said and the context in which it was said'. His Honour set out paragraph 78 of the Tribunal's reasons which is reproduced at [35] above. His Honour then reasoned as follows:

[39] Having regard to this finding of the Tribunal, for the finding to be irrational or illogical, the sentence that is in the middle of that paragraph must be the sentence that is irrational or illogical; that being that, 'the applicant had sought to colour his own claims by a narrative implying, as it clearly and consistently did before all prior tribunals of fact leading to the present review, that the applicant formed part of his mother's second family unit.' It is instructive to look at the following aspects.

[40] In his initial request for a refugee status assessment, on 14 April 2011, the Applicant stated that he was unemployed at home with parents between 2003 and 2004.

[41] In his statutory declaration dated 14 April 2011, he stated:

My parents separated after I was born. I then lived with my mother.

[42] In his submission to the independent reviewer dated 1 December 2011, it was submitted that the Applicant then lived with his mother.

[43] In a further statutory declaration which was submitted to the department in February 2016, the Applicant stated:

My parents separated after I was born. I then lived with my mother.

[44] A core part of the Applicant's claim was his membership of the mother's family unit; that is, that he would be imputed with a pro-LTTE opinion because of his brothers.

[45] When it was that the Applicant was questioned, he admitted, as I have earlier said, that he lived with his grandmother after separation and that his mother lived with her new husband and second family some five kilometres away and she would visit the Applicant weekly. The fact is, he was never part of the mother's second family.

[46] The Applicant filed another statutory declaration for the Tribunal following the hearing in October 2020 where he stated:

I wish to clarify that while I lived with my grandmother after my parents separated, I spent time with my mother, stepfather and half-siblings at least once per week. As I explained at my hearing, they would come and visit me.

[47] The fact that the Applicant had to start that sentence with 'I wish to clarify' is an admission by him that he had not made it clear as to what the true situation was. In fact, he had given a very false inference throughout his applications that he had been part of his mother's second family.

[48] There is nothing that was unreasonable, irrational or illogical in what the Tribunal said about this aspect, and there is certainly no jurisdictional error that is illustrated by ground two. Ground two also fails.

1. It is important to appreciate the bases on which the appellant now challenges the Tribunal's credibility findings. There appear to be two threads to the appellant's argument.
2. One thread involves the appellant setting out various factual matters which, he contends, mean that some of the factual findings that the Tribunal made were 'against the evidence'. These include findings: that the appellant was raised in a different village from his mother - according to the appellant transcript before the Tribunal showed it was the same village; and that he never ordinarily resided with his mother - the evidence showed that he did live with her as a baby or small child, albeit for a short time only. The appellant also marshals evidence to the effect that while he did not live with his mother, they maintained a close relationship.
3. The other thread to the appellant's argument is a contention that the Tribunal's reasoning as to the appellant's credibility concerning his early life history reflects a misunderstanding of the LTTE family member claim. The appellant submits that the claim was not that the authorities would assume that the eldest male in the household was an LTTE member, but rather the eldest male in the family. It follows, he says, that the difference between the facts as presented by the appellant (in the Tribunal's view) before the Tribunal hearing of 26 October 2020, when the Tribunal took a detailed personal history, and the facts that appeared to the Tribunal after that hearing, were inconsequential. It did not matter that the appellant was not a member of the same household as his mother and stepbrothers, because what mattered was that he was part of the same family. His claim was that the Sri Lankan authorities would assume that the LTTE had recruited him (forcibly or not), regardless of whether he lived with his mother and stepbrothers.
4. Counsel for the appellant placed emphasis on this second thread in his oral submissions as compared with his written submissions. It is not clear whether this thread was put to the primary judge, but the Minister did not object to the appellant pursuing it in this appeal, and addressed it on its merits.
5. The first thread of the argument is, with respect, unpromising on its face. For by it, the appellant appears to be contesting the merits of various factual determinations which, he says, underlaid the Tribunal's credibility findings. But it is not necessary to say more about it because I have concluded that the second thread, and with it ground 2, succeed.
6. As to the principles, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [77], Robertson J emphasised the case-specific nature of the question of whether adverse credibility findings constituted jurisdictional error. For that question to be answered in the affirmative, it is not always necessary to fit the error into some fixed category or formula. Categories and formulas may be useful for analysis but:

they should be seen as servants rather than masters. To proceed otherwise in the area of jurisdictional error is to look for more precision than the nature of the subject admits. In each case what the decision-maker has decided must be analysed in detail in order to arrive at the correct description of conclusion, 'jurisdictional error'.

It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim.

1. Accepting Robertson J's admonishment about fixed categories, it appears to me to be possible that if the finding of the Tribunal here, that the appellant lived with his grandmother rather than his mother, was objectively minor in the context of the LTTE family member claim, the Tribunal may have fallen into jurisdictional error. That is all the more so if the great weight the Tribunal put on the discrepancy was the result of a misunderstanding or oversight concerning that claim. It would then bring in aspects of the kind of reasoning that has led to findings of jurisdictional error in well known cases such as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.
2. Another way of approaching what can, in my view, be the same kind of error is reflected in Beach J's statement in BEL16 v Minister for Home Affairs [2019] FCA 1678 at [20] that 'even where there are inconsistencies and discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue on which the evidence is given'. If, on an objective analysis, the inconsistencies concern matters that are peripheral to the issue of relevance, that may mean that the reasoning was illogical, unreasonable or irrational.
3. But to return to SZRKT, that is not to be applied as though it is some kind of formula. A fact‑specific inquiry is always necessary, informed of course by the overriding principle that the question is not whether the Court would have approached the fact-finding exercise differently; the question is whether it was open to the Tribunal to approach it the way it did: see BEL16 at [17].
4. My reasons for concluding that the Tribunal fell into jurisdictional error can be expressed briefly, by reference to the matters canvassed at more length above. They are as follows:

(1) The appellant made the LTTE family member claim repeatedly, and consistently. It was an important aspect of his protection claims: see [13], [15], [18], [20]-[22], [25] above.

(2) Each time the appellant made that claim, it was based on a statement that the LTTE's policy was that one member of each family must join them. As the appellant now submits, it was not a policy that one member of each household must join them. It followed, on the appellant's account, that because his step brothers were disabled or dead, the Sri Lankan authorities would assume that he, as the eldest able-bodied member of the family, would have joined the LTTE: see [13]-[16], [18], [20], [22] above.

(3) It follows from this that there was objectively no reason why it was to the benefit of the appellant to fabricate that his early life history. If the nature of the LTTE family member claim is properly understood, it is difficult to see why the Tribunal placed so much significance on the discrepancies in the appellant's account of his family situation.

(4) That is so even accepting, as the primary judge did, that the autobiographical accounts the appellant gave, directly or through submissions, made it sound like he had been raised by his mother. Even so, those accounts were very brief, were given through an interpreter or translator, and were defensible as being literally true because the appellant did live with his mother for a short period of time. This all adds to the difficulty in understanding why the Tribunal placed such significance on the discrepancies.

(5) While the primary judge referred to another reason why the appellant's family situation might have been relevant to his claims, namely that 'he would be imputed with a pro‑LTTE opinion because of his brothers' (see para 44 reproduced at [48] above), it is not clear what his Honour was referring to there; perhaps it was paragraph 113 of the Tribunal's decision (reproduced at [43] above). In any event, on appeal neither party relied on this possible justification for the Tribunal's views on the appellant's credibility.

(6) Despite the objective lack of significance of the appellant's living arrangements in his childhood, the Tribunal did find the discrepancies in his account to be highly significant. Adverse commentary on the appellant's credibility as a result of them appears throughout the reasons and influenced its conclusions about his credibility overall. That is so even acknowledging that at one point (see para 78 reproduced at [35] above) the Tribunal limited the effect of its conclusions to 'those aspects of the applicant's claims'. Given the frequency with which the Tribunal commented on the discrepancies, and the content of its comments, it placed broad significance on the adverse credibility findings.

(7) Importantly, and in the context of all the above matters, nowhere in its reasons does the Tribunal either describe or determine the LTTE family member claim. Given the number of times the appellant made the claim, it is difficult to accept that this was because the Tribunal considered the claim, and decided that it lacked weight so that it was unnecessary to mention. This, together with the otherwise inexplicable significance the Tribunal placed on the discrepancies, supports an inference that the Tribunal misunderstood the LTTE family member claim. It is likely to have wrongly assimilated it with a broader claim (or imagined claim) that the appellant would be imputed with LTTE sympathies because he lived in the same household as two brothers who had fought for the LTTE (see para 103 reproduced at [41] above). But the LTTE family member claim was different to this.

1. To be fair to the Tribunal and to the primary judge, by the time the Tribunal queried the discrepancies in the appellant's accounts of his early years, the appellant and his solicitors each framed its relevance more in terms of a different claim, arising out of a 'confession' one brother is said to have made to the authorities: see [27]-[28] above. But whether the appellant lived in the same household as that brother was objectively irrelevant to that claim. And the LTTE family member claim had been made numerous times before then, and had not been withdrawn, so it was still important to the assessment of the significance or otherwise of the discrepancies.
2. Counsel for the Minister submitted that the Tribunal had found that the appellant was not part of his mother's family unit, so that explains why it found the discrepancies to be so significant. But the finding in question, at paragraph 95 of the Tribunal's decision (see [38] above), was made in the context of a different claim about alleged official harassment of the appellant's mother and stepfather after the appellant left Sri Lanka, as an adult. It may also be that the Tribunal treated 'family unit' as synonymous with household.
3. Elsewhere, the Tribunal found that the appellant's contact with his mother was regular, albeit that it took the form of visits by his mother to his home where he lived with his grandmother: see [40] above. It is difficult to see how a relationship of that kind is not a family relationship. I do not accept that the Tribunal understood the LTTE family member claim but put great significance on the discrepancies because it found that the appellant and his mother (and stepbrothers) would not be viewed by the Sri Lankan authorities (or the LTTE) as members of the same family.
4. In short, the Tribunal placed great significance on objectively minor discrepancies in the appellant's evidence and submissions, most likely because it misunderstood the relevant claim the appellant was making. To use the language in BEL16, the Tribunal's misunderstanding of the claim led it to treat the discrepancies as central, when in truth they were peripheral. To the extent that it is necessary to place this into an established category of jurisdictional error, the Tribunal's decision was unreasonable, illogical and irrational.
5. With respect, the primary judge erred in failing to characterise the Tribunal's reasons this way, in particular by failing to identify the Tribunal's misunderstanding of the LTTE family member claim and its interaction with the adverse credibility findings.

1. The appeal will be allowed as to ground 2. As has been said, that means it is unnecessary to decide whether leave should be given to advance ground 3 or ground 4. The decision of the Circuit Court will be set aside and in its place an order made that the Tribunal's decision will be quashed. The matter will be remitted to the Tribunal to decide according to law. The costs of the proceeding below and of the appeal will follow the outcome of the appeal.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.