AKV18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1127

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The Applicant is a citizen of Sri Lanka who sought protection of Australia primarily on the basis of claims to fear that, on return, harm would be occasioned because of his past, suspected links to militant groups and because he is an asylum-seeker who fled Sri Lanka illegally.
2. The Applicant now seeks judicial review of an administrative decision to affirm an earlier decision to refuse him a protection visa.
3. For the reasons that follow, the application must be allowed with costs.

1. The Applicant is a citizen of Sri Lanka, of Tamil ethnicity and Catholic faith.
2. On 13 October 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
3. Subsequently, in 2016, the Applicant applied for a safe haven enterprise (subclass 790) visa (the protection visa) and provided a statutory declaration in support.
4. On 29 March 2017, on invitation of the Department, the Applicant apparently attended an interview with a delegate of the First Respondent and provided a supporting document to the interviewer which was kept with the Department's records. There was no audio recording or transcript of interview or other record of interview before the Court in these proceedings.
5. On 11 April 2017, a delegate of the First Respondent refused to grant the protection visa (delegate's decision).
6. On 6 May 2017, in the course of review before the Immigration Assessment Authority (as it then was) (Authority), the Applicant's migration agent provided a submission and some supporting documents.
7. On 23 January 2018, the Authority affirmed the delegate's decision on review (Authority's decision).
8. On 31 January 2018, the Applicant filed the originating application for judicial review of the Authority's decision and a supporting affidavit sworn that same day.
9. On 20 February 2018, a response was filed on behalf of the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
10. On 26 November 2018, the First Respondent filed a Court Book.
11. Various procedural orders were then made.
12. On 5 August 2024, the Applicant filed an amended application, a copy of the Department of Foreign Affairs and Trade's "Country Information Report Sri Lanka" dated 24 January 2017 (DFAT Report) and an outline of submissions. The amended application identified 3 grounds of review in the following terms:

1. The Second Respondent ("the Authority") fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.

PARTICULARS

a) The Authority did not consider with the engagement required by law all the information relating to torture and other abuse of human rights, including all the information about this topic in the "DFAT Country Information Report - Sri Lanka", 24 January 2017.

b) Further or in the alternative to Particular (a) to this ground, the Authority did not consider with the engagement required by law the question whether the Applicant may suffer relevant harm while in detention on return to Sri Lanka.

c) The Authority did not consider with the engagement required by law the Applicant's explicit claim whether he may suffer relevant harm after returning to his home area. (CB 62, [27]-[28])

d) The Authority did not consider with the engagement required by law the question, squarely raised on the material before the Authority and its findings, whether the Applicant may suffer relevant harm by not being able to engage in his livelihood in peace, nor whether this may lead to further protest and further harm of the kind which the Authority accepted had already occurred to the Applicant, including assault and the planting of false evidence in order to prosecute and convict him of a criminal offence. (CB 63, [28]; CB 157-158, [17]-[24])

2. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

PARTICULARS

a) The Authority erred in interpreting or applying section 473DC of the Migration Act 1958 ("the Act") in finding that the information in the submission to the Authority about:

• ❖ Former Liberation Tamil Tigers of Tamil Eelam ("LTTE") are working for the Sri Lankan authorities and are looking for people like the applicant;
• ❖ the inclusion of the Applicant's name on the Sri Lankan authorities' database after his 2011 court case and his participation in the 2012 protest, and
• ❖ being at risk of harm under the Sri Lankan Prevention of Terrorism Act ("PTA")

was "new information" within the meaning of sections 473DC and 473DD of the Act, rather than submissions in response to the decision of the delegate or amplification of information already before the delegate. (CB 135, [4])

b) Further or in the alternative to Particular (a) to this Ground, the Authority erred in interpreting or applying 473DD(b)(ii) of the Act, in not finding the information there set out was "credible personal information", and this finding affected and infected the Authority's finding that there were not exceptional circumstances under section 473DD(a) to justify considering that information. (CB 135, [4])

c) The Authority erred in not finding that the information relating to the continuing impunity of the Sri Lankan authorities (CB 139), and information about the attempts to evict Tamils from fishing (CB 142), did not meet section 473DD(b)(i) of the Act and this finding affected and infected the Authority's finding that there were not exceptional circumstances under section 473DD(a) to justify considering that information. (CB 154, [7])

3. The Authority fell into jurisdictional error in that it made findings without a logically probative basis or was otherwise legally unreasonable.

PARTICULARS

a) The Authority had no logically probative basis to reject the Applicant's account of the Navy and CID coming to his house in search of him around midnight on 13 August 2012. (CB 158-159, [25]-[26])

b) The Authority had no logically probative basis to reject the Applicant's account that he had obtained a passport from the authorities in Colombo only about six weeks after he claimed that the Navy and CID came to his house in search of him around midnight on 13 August 2012. (CB 157-158, [18]-[20]; CB 159, [27])

c) The Authority had no logically probative basis to reject the Applicant's account that the CID or other Sri Lankan authorities have been searching for him since he left Sri Lanka. CB 159, [28])

d) The Authority had no logically probative basis not find that the Applicant, having a record of conviction on false information by the Navy, may have a greater risk of suffering greater scrutiny on return. (CB 161, [42], [43]

(sic.)

1. On 12 and 13 August 2024, the First Respondent filed their written submissions and a list of authorities.
2. On 14 August 2024, the Applicant filed a list of authorities.
3. The matter proceeded to final hearing before the Court as presently constituted on 15 August 2024. The Applicant and the First Respondent were both represented by Counsel at hearing.
4. I turn then to consider the grounds of the amended application, but not in that order.

1. It is convenient to start with the grounds of judicial review as they related to the Applicant's claim to fear harm as an illegally departed asylum seeker where the Sri Lankan authorities had records of him as an LTTE suspect which they would use to keep him in indefinite detention on return, where he would be tortured.

1. The Authority's decision identified material before it that was and was not considered: at [2] to [7]. At [4], the decision maker identified the following as "new claims" which were not before the delegate, being raised for the first time before the Authority in the 6 May 2017 submission:
   • Former Liberation Tigers of Tamil Eelam (LTTE) members and supporters now work for the Sri Lankan authorities and are looking for people like the applicant, who are perceived as possible contributors to the resurgence of the LTTE.
   • The applicant's name was included on the Sri Lankan authorities' database after his 2011 court case and his participation in the 2012 protest.
   • Under the Prevention of Terrorism Act the applicant can be arbitrarily detained at any time without access to legal help, simply because he is a Tamil.
2. At [5], the Authority observed that the Applicant's submission did not explain why these new claims were not provided earlier or should be considered. The Authority also acknowledged that the Applicant was unrepresented at the time of the delegate's interview but had been legally assisted in preparation of his application and residing in Australia for 4 years at the time of the delegate's interview. The nature of the explanation by the interviewer who conducted the delegate's interview was considered to the extent that the Authority said, at [5]:

... The delegate also spent some time explaining how the applicant's protection obligations would be assessed, and the importance of providing all relevant information in the first instance, which the applicant indicated he understood.

1. The Authority also took into account that no further information was received from the Applicant before the delegate's decision was made, none of the identified new claims (at [4]) appeared to relate to more recently occurring events and that the Applicant had not provided any detail or corroborating material to support these new claims. Overall, the Authority concluded that it was not satisfied that "exceptional circumstances" existed as to justify consideration of these "new claims" nor had the Applicant satisfied the decision maker as to either of the matters in s.473DD(b) of the Act: at [5].
2. The Applicant's claims were then summarised by the Authority: at [8]. There, the Authority recognised (among other claims) that the Applicant claimed to have been abused by the navy, arrested by police, taken to court and then fined in 2011 under accusation of having dynamite on a boat. The Authority summarised the Applicant's claims to fear harm from the Sri Lankan authorities as that the authorities will detain, interrogate, torture or kill him because he is a Tamil fisherman from the north, he is suspected of LTTE links, he was a witness to government atrocities, he was of adverse interest to the navy and participated in a protest against them, and in 2012 he departed Sri Lanka illegally and sought asylum in Australia.
3. The Authority accepted that the Applicant had departed Sri Lanka illegally in September 2012 and sought asylum in Australia: at [38]. It did not accept he was of any interest to Sri Lankan authorities and found he would not be imputed with an anti-Sri Lankan government political opinion therefore was not satisfied that he faced a real chance of harm on account of having sought asylum in Australia: at [39]. Here, it was referenced that the Applicant had been fined for alleged dynamite possession in 2011, has a criminal record and his details are on record with the Sri Lankan authorities but, on account of his lack of profile and that he would not be imputed with anti-Sri Lankan government political opinion, the risk of harm was no greater for the Applicant than any other illegally returning asylum seeker and did not amount to serious harm: at [19], [20], [42] and [43].

1. The Applicant contended that the information identified at [4] of the Authority's decision was not "new information" at all as it was the explication of material implicit in the Applicant's claims before the delegate and it was an error to decide that it could not be considered. And, or in the alternative, the Applicant contended that this amounted to a failure to consider a relevant consideration and/or there was no logically probative basis for the Authority not to find that having a record of conviction on false information by the navy may have a greater risk of suffering scrutiny on return.
2. The First Respondent opposed - initially, on the basis of lack of particulars and subsequently, at hearing, on the basis that it was open to the Authority to conclude that certain of the information that it had received was indeed "new information" for the purposes of the Act in circumstances where the Applicant failed to explain how the Applicant had the knowledge of the new information and where there was no detail or corroborating material to accompany it.

1. Division 3 of Part 7AA of the Act (which governed the review of the delegate's decision to refuse the Applicant's visa application) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s.473DA.
2. Section 473DB provided that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so "without accepting or requesting new information" and "without interviewing the referred applicant".
3. Subdivision C of Part 7AA, most relevantly at s.473DC - 473DD, concerned how the Authority may "get" and "consider" new information that was not before the Minister when the decision was made under s.65. To the extent that "new information" is defined, it is found at s.473DC as follows:

473DC Getting new information

(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

(b) the Authority considers may be relevant.

(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.

1. In the context of the discretion to get new information, "new information" meant any document or information of an evidentiary nature that was not before the Minister when the decision was made under s.65 to refuse the application and which the Authority considered may be relevant: s 473DC(1); AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) (AUS17) at [3]; Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) at [25].
2. The Authority was required to consider each necessary and relevant consideration and integer of the claim, and each material question of fact squarely raised by the material before it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (Mason J) at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 (Perry J) at [13]-[18]; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) at [24]; see also SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 (Madgwick and Conti JJ) at [29]; and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (Black CJ, French and Selway JJ) at [58]. The scope of the obligation to actively consider a particular claim, integer or evidence varies according to the circumstances of the particular case: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) at [26], [77]-[78], [108].
3. Also of relevance is the uncontroversial principle that a decision maker is required to act reasonably, in a legal sense: Plaintiff M174; see also Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) (Li). Acknowledging the caution of the High Court against use of labels such as "proper, genuine and realistic consideration" (Plaintiff M1/2021 at [26]), legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an "evident and intelligible justification" (Li at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found "if there is no logical connection between the evidence and the inferences or conclusions drawn" (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (Gordon J) at [43]; citing Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (Gummow ACJ, Heydon, Crennan Kiefel and Bell JJ) (SZMDS) at [135]). However, the test has been described as "necessarily stringent" (Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) at [11] per Kiefel CJ). It is not met where reasonable minds could have come to different conclusions (SZMDS at [130]-[131] per Crennan and Bell JJ).

1. On consideration of the Applicant's statutory declaration that accompanied his visa application, dated 21 October 2016, it is apparent that the delegate had before it a claim that the Applicant feared that he would be arrested, questioned and detained on return to Sri Lanka and - in the context of that claim - a claim that any records the CID had of him as an LTTE suspect would be used to keep him in indefinite detention on return, where he would be tortured: paragraph [26]. The original statutory declaration also referred to the claimed events of 2011 and 2012, respectively involving an arrest and fine for alleged dynamite possession and the Applicant's organisation of a political protest and complaint to the local fishing society about the unfair treatment and that his complaining about not being able to go fishing was overheard by a navy officer who in turn assaulted the Applicant: at paragraphs [15] to [17] and [19] to [20].
2. The Authority's decision was therefore affected by error in that the Applicant's 6 May 2017 submission to the Authority therefore did not contain "new information" in an evidentiary sense to the extent that the submission provided that the Applicant's name was included on the Sri Lankan authorities' database after his 2011 court case and his participation in the 2012 protest. That component of the submission to the Authority was just that - a further submission in support of the Applicant's existing claims, in response to the delegate's decision.
3. While some inconsistencies are discernible on the face of the Authority's decision, it remains that the Authority expressly excluded from consideration the Applicant's submission about fearing harm on return as an illegal departee because of information about him on the authorities' records as new information.
4. The subject information about the Sri Lankan authorities' records of the Applicant is at least conceivably relevant to the assessment of the Applicant's profile and to the question of the likelihood and significance of harm the Applicant may face on return to Sri Lanka as an illegal departee.
5. Accordingly, on its own expression, the Authority failed to consider a relevant consideration which I would not conclude was or could be cured by the subsequent and inconsistent notations acknowledging the Applicant's criminal record. That part of ground 1 succeeds.
6. In any event, the process of reasoning was illogical or legally unreasonable (in the sense of the authorities) in terms of the Authority's ultimate conclusion as to the absence of the requisite satisfaction. The Authority dismissed the Applicant's claim to fear harm on return as an illegal departee with records available to the authorities on the basis of his lack of any profile and that the prior criminal charges are spent - but, in making those findings, did not adequately engage with the fact of the existence of the Applicant's previous record and the substance of it which were political or anti-government charges laid in 2011 and a subsequent politically-associated complaint before and related assault by a navy officer in 2012. I conclude that the absence of the adequate engagement was a material error of jurisdiction. That part of ground 3 also succeeds.

1. It being strictly unnecessary to do so, I decline to determine the remaining parts of grounds 1, 2 and ground 3.
2. For the above reasons, the application is allowed with costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.