AOB18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1450

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
2. For the following reasons, I consider that I am obliged to dismiss the application before the Court.

1. The applicant applied for the protection visa that is the subject of this proceeding in September 2021.
2. On 30 November 2023, the Delegate refused the application. The matter was then referred to the IAA for review.
3. The applicant was invited by the IAA to comment on or respond to certain information on 12 February 2024. He submitted material to the IAA and, on 20 March 2024, attended an interview conducted by the IAA.
4. On 14 May 2024, the IAA affirmed the Delegate's decision.

1. The IAA observed that information was provided in the review material regarding criminal charges, convictions and sentencing of the applicant in Australia, as well as reasons for refusing him a bridging visa. The IAA did not consider this material to be relevant to the review. However, the IAA observed that it had invited the applicant to comment upon its intended approach to the information. The IAA expressed that it "had no regard" to the information in relation to the review (at [4]-[5]).
2. The IAA observed that it had received new information that had been provided after the Delegate's decision. That information was assessed against the criteria for consideration under s 473DD of the Migration Act 1958 (Cth) (Act). The IAA found that the relevant criteria for consideration were met in relation to a series of information relevant to the applicant's mental health, new claims that he had made, certain country information, as well as certain new information that he had otherwise provided in writing and at interview (at [5]-[38]). In relation to certain country information reports, although the IAA found that s 473DD(b) was not met, the IAA considered that there were exceptional circumstances justifying their consideration. The IAA therefore obtained them for the purposes of the review (at [38]). The IAA similarly obtained the most recent report from the Department of Foreign Affairs and Trade on Sri Lanka (at [39]).
3. The IAA considered the claims and evidence before it in some detail at [40]-[107] of its decision, before summarising its findings as follows at [108]-[116] (some parts have been redacted to prevent identification of the applicant and others):
   1. I have set out my significant concerns with the credibility of the applicant's claims. The belated introduction of such significant new claims now relied upon raises doubt, for the reasons expressed. The applicant has admitted, to the delegate and the IAA, that he has been untruthful in his claims and interaction during this process. I consider carefully the credibility concerns arising, conscious of the issues that can be at play in a change of claims and such admission, and that belated claim or change is not necessarily of itself demonstrative that a new claim is not true. However, as discussed above, the serious concerns with the credibility of the applicant's new claims and account, and of being personally targeted as of real adverse concern in Sri Lanka, are for matters beyond merely of the LTTE claim belatedly raised, or associated accounts changed from that previous pressed. I have real concern about the shifting, escalating, unpersuasive, contradictory and implausible aspects of much of the applicant's evidence.
   2. I have considered the mental health reports. I accept psychological issues such as the experience of past trauma can affect a person's memory and ability to give coherent evidence and that living in Sri Lanka up until 2012, an environment of past prolonged armed conflict, serious human rights violations and military occupation, experiences of family injury and being questioned by authorities, may have been traumatic for the applicant. I accept that the applicant has been diagnosed with depression and anxiety and has presented with symptoms consistent with PTSD. I accept Doctors... expressed some concern about apparent cognitive function; but there is no diagnosis of Neurocognitive Disorder or cognitive impairment before me, and I do not make such a finding. As already discussed, I have significant concern about applicant's presentation to the authors of the mental health reports before me and the circumstances and motivations at play in the timing of those assessments, noting the one-off event and purpose of the 2018 Psychiatry Report, and noting also the applicant's willingness to be dishonest not only to the Department and to the IAA, but also to his STARTTS counsellor about the basis of his claimed recent increasing psychological distress, from the claimed sword attack on his family. The evidence before me illustrates that in choosing what claims to raise or story to tell or not the applicant has had some influence and inspiration from others - Tamils in the community, an LTTE asylum seeker friend, his sister - including in deciding to raise a series of false claims. I have real concern about this regarding his new claims, encouraged from advice by his LTTE asylum seeker friend including about whether changed claims would be believed, before seeing [name redacted], before the SHEV interview where he raised the new claims, and also regarding his presentation to healthcare report authors. [Name redacted] described in the August 2023 Assessment Report that the applicant reported experiencing nightmares, flashbacks and intense physiological reactions when reminded of traumatic events from his past such as detention, torture, disappearance and murder of family members, and engaged in high level of avoidance behaviours to prevent reminders of traumatic events. I have concern as to whether such claimed symptoms and behaviour are compatible with attending at Maaveerar Nal events to commemorate killed LTTE members, and note such activity now claimed by the applicant in 2016 was not recorded by [name redacted], suggesting this was not reported to him.
   3. For all the reasons discussed, I am not satisfied that the applicant's mental health concerns adequately explain his failure to raise the LTTE claims and accounts belatedly now relied upon or outweigh the concerns identified with this claim. I am not satisfied that the applicant's evidence or his ability to give account of his circumstances in Sri Lanka has been negatively impacted or prevented by any of his mental health concerns. And whilst I accept the applicant may have struggled to fully understand all the legal issues related to the various court/tribunal proceedings concerning his protection visa applications and bars on earlier applications, I am not satisfied by his explanation of continued heavy reliance on lay people advice, about his claims raised, after being provided with legal assistance for his several different visa applications and associated visa legal proceedings.
   4. For all the reasons discussed earlier, and not just the late introduction of these claims, I do not accept that the applicant was an LTTE member, or that he was in [specified areas] in 2008/2009 as claimed or was detained and interrogated in an IDP camp and released by bribery. I do not accept that the applicant's father or (A) or any close family members, including an uncle (N) were LTTE members or cadres or supporters. I do not accept, on the unsubstantiated evidence before me, the very vague claims of various unspecified relatives, being LTTE members or LTTE combatants. I have accepted the applicant and his parents originated from areas formerly under LTTE control at different times. I do not accept the applicant's family or relatives were involved with the LTTE other than incidentally from living in areas formerly under LTTE control. I do not accept that the applicant was regarded by the authorities as being from an LTTE family.
   5. I have significant concern with the unreliability of much of the applicant's evidence concerning being targeted in Sri Lanka. Even taking into account the applicant's mental health issues in assessing his claims and differing evidence, overall, I am not satisfied that these adequately explain or overcome the significant concerns I have with the credibility of those claims. His father was from [a specified area], as was (A), and I find that the applicant's earlier claims of spending time in [area] in 2008 and this being a circumstance about which he would be asked questions in round-up detentions to be plausible and credible. However, whilst it is not implausible for the applicant to be exposed to questioning or checks by authorities in that era, as a young Tamil man in [a specified area] and with family roots and time spent in [another area], I have concern that he has greatly exaggerated such instances into a personal, ongoing targeting of him and his brother-in-law (A), or particular interest in him and (A) by the authorities.
   6. As earlier discussed, I have very serious doubt that the applicant's father and an unnamed uncle were personally targeted to be shot. I do not accept they were LTTE members or supporters. I accept they were shot and injured in about 2006, but I am not satisfied that these shootings, or the shooting of a local school boy in [an area], were anything other than random violence in that era. I do not accept that the applicant was regarded by the authorities as being from an LTTE family, or that any aspect of his immediate family relationships brought the applicant to any adverse concern of the authorities or any other persons.
   7. I am prepared to accept the applicant's claims in his SHEV statement that he was twice caught up in general SLA round-ups with others in [an area] and taken for questioning - first in 2010 at [a specified location] (with (A)) as described above, and then at a school near his home in 2011. It is possible that he may have experienced some mistreatment in the overnight questioning by the CID/SLA, given reported widespread mistreatment of Tamils detained in that era.27 I find this was the not uncommon experience of many young Tamil men in that era and reflected opportunistic information gathering and the general suspicions of the authorities against most Tamils. However, I do not accept that the applicant was personally targeted for these round ups or detentions, nor that he signed any confessions or was required to return for reporting. I am prepared to accept that armed men came to his house one day in 2011 and with guns made him and (A) kneel. I do not accept that they were looking for the applicant and/or (A), or a relative of his, or took them to an uncle's house. I find his claim that the men merely conducted a search of the neighbourhood and later arrested a man in a neighbouring house in the village more convincing and plausible. It is possible this man later died. I do not accept the applicant or (A) were targeted in this search; I find they were merely at one of the village houses secured for the neighbourhood search.
   8. I accept that such incidents may have caused the applicant general fear for his safety at the time, but I do not accept that he went into hiding for two years before he left Sri Lanka or that he was in hiding at the ICRC or anywhere else in that time. I do not accept that the CID, SLA or any Sri Lankan authorities or other persons had genuine suspicion or concern that the applicant (or (A)) was really an LTTE member or supporter or of any adverse concern beyond the general imputations that most Tamil men in or from the north faced in that era. I do not accept that the CID, SLA or any Sri Lankan authorities or other persons were searching for or coming to enquire about or targeting the applicant and/or (A) at this or at any time for any reason claimed or at all, then or since the applicant departed Sri Lanka in 2012.
   9. I do not accept that the applicant or (A) filed a court case or legal complaint against the SLA or Sri Lanka Government concerning seized family land, and I do not accept that any family land of any close relative or of (A) or (N) has been occupied by the SLA or any Sri Lankan authorities. I do not accept there was or is currently any impending or ongoing court case of any kind against or involving the applicant in Sri Lanka.
4. The IAA considered the applicant's claims to have been involved in "Maaveerar Nal" commemorations in Sydney at [117]-[121] of its decision. The IAA accepted that the applicant attended a commemorative event with friends at which he was photographed in 2016. However, the IAA was not satisfied that the applicant had attended more than one event. The IAA did not accept that he actively posted to Facebook about Maaveerar Nal or any other LTTE matters, or attracted the adverse attention of any Sinhalese people or others as claimed. The IAA considered that the chance of the applicant being identified in an unclear picture on a Facebook page was remote and found that it was not satisfied that the applicant had been or would be so identified.
5. The IAA accepted that the applicant had a distant relative who died in a car accident. The IAA did not accept that they were deliberately targeted or killed because of involvement in preparation for any Martyr's Day commemoration or for reason of the applicant's claimed family links to the LTTE. The IAA was not satisfied that this death had any consequence to the applicant concerning his protection claims (at [122]).
6. The IAA accepted that the applicant was a Tamil from the area claimed and that it was this area to which he would probably return if he went back to Sri Lanka. The IAA did not accept that the applicant's sister and family were in ill health and not doing well in the manner claimed. The IAA was not satisfied that the applicant would be unable to be assisted by family with accommodation and basic support until he otherwise re-established himself in Sri Lanka (at [126]).
7. The IAA did not accept that any state or non-state actors had been searching for the applicant or enquiring about him at his home since he left Sri Lanka. The IAA was not satisfied that the applicant had a relevant adverse profile that may attract adverse attention from the authorities. The IAA did not accept that the applicant had posted political or pro-LTTE content about Maaveerar Nal to a Facebook page with a friend as claimed, or at all. Considering the applicant's profile and circumstances, the IAA was not satisfied that the applicant's very limited attendance at a Maaveerar Nal event in Australia in 2016, and the fact that two photographs of that attendance were posted, without naming him, to a friend's Facebook page, were matters that had brought or would bring him to any adverse attention of the Sri Lankan authorities. The IAA considered that the chance of the applicant being identified or perceived to have a relevant adverse profile was "very remote". The IAA was not satisfied that the applicant would be interested in participating in such events in Sri Lanka or that there was a real chance of him facing harm on this basis. The IAA concluded that it was not satisfied that there was a real chance of the applicant being harmed in Sri Lanka "for reason of any claimed actual or imputed political opinion on the basis of ethnicity, gender or his or his family's origins from the Northern Province, and or from his previous encounters with security forces in Sri Lanka" (at [128]-[145]).
8. The IAA accepted that the applicant had psychological health concerns, although it had some concerns about exaggeration of his symptoms. The IAA considered that any detrimental effect having to leave Australia may have on the applicant's mental health, including separation from his family (if they did not go with him), would be ameliorated to an extent by release from immigration detention, return to his culture in Sri Lanka, and reunification with his family there. The IAA accepted that there were economic issues in Sri Lanka, including gaps in Sri Lanka's mental health care services. However, the IAA was not satisfied that the health care and mental health care systems in Sri Lanka were inadequate to meet the applicant's needs (at [146]-[152]).
9. The IAA did not accept the applicant's claim that his family were unaware of his condition, or that they would not understand his condition or offer him any support. The IAA was not satisfied that the applicant would face official or societal discrimination or harm in connection with his mental health concerns, including when considered in conjunction with his profile and other circumstances. The IAA was not satisfied that the applicant's mental health issues would be a barrier to employment. The IAA found that there was no real chance of the applicant facing harm in terms of his mental health or any other health concerns if he were to return to Sri Lanka (at [153]-[155]).
10. The IAA was not satisfied that the applicant faced a real chance of being denied access to basic services, the capacity to earn a livelihood, or being subjected to systematic and discriminatory conduct threatening his capacity to subsist. The IAA was not satisfied that the applicant otherwise faced a real chance of being targeted or subjected to serious harm due to economic challenges in Sri Lanka. The IAA concluded that it was not satisfied that the applicant would face a real chance of "any harm... from the CID, SLA or any other Sri Lankan authorities or other persons, for reason of his ethnicity, his age, gender, origins from the Northern Province, mental health issues, and/or any of his previous interactions with the security forces in Sri Lanka, or any combination of these reasons, or at all" (at [156]-[157]).
11. The IAA accepted that the applicant may have departed Sri Lanka illegally and that the authorities may infer that he sought asylum in Australia. The IAA accepted that the applicant would likely be questioned at the airport to determine his identity and any criminal history. The applicant may also be briefly detained, may be charged and may face a fine. The IAA was not satisfied that the applicant would face a real chance of serious or significant harm as a result of this process. Further, the IAA considered that these procedures would be pursuant to a non-discriminatory law of general application. The IAA was not satisfied that the applicant faced a real chance of harassment, discrimination or any other harm on return to Sri Lanka on the basis of failing to secure asylum in Australia. The IAA also considered that the chance of the applicant being harmed by any general, societal or domestic violence to be remote and not to be a real chance (at [158]-[170] and [176]-[178]).
12. The IAA concluded that it was not satisfied that the applicant met the criteria for the protection visa under ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the IAA affirmed the Delegate's decision (at [171]-[180]).

1. The applicant applied for judicial review of the IAA's decision on 17 June 2024, relying upon the following ground:

The Tribunal made jurisdictional errors in that it:

1. Failed to properly consider all of the evidence, and make findings on all claims raised

(As per the original)

1. At the hearing of the matter before the Court, the applicant sought an adjournment for the purpose of speaking with a lawyer. I raised a number of concerns with this proposal, including the timing of it, the limited nature of the Court's resources regarding hearings and the Court's case management obligations. I expressed concerns regarding the applicant's situation in immigration detention. In circumstances where the applicant had not been able to engage a lawyer prior to the hearing and did not know his proposed lawyer's name, I also expressed that it was difficult to be confident that a lawyer would be engaged if the adjournment were granted.
2. In the above circumstances, I proposed an alternative to the parties. That alternative was to allow a timetable for written submissions after the hearing. This would allow the applicant an opportunity to engage the assistance of a lawyer, if he were able to do so. I observed that if a lawyer were then successfully engaged, they could make an application for a further hearing if they considered it appropriate to do so. This alternative course, as proposed, was sought by the applicant. It was not opposed by the Minister. A timetable for post-hearing submissions was accordingly ordered.
3. At the hearing, the applicant expressed that he was unsure whether the letters he gave to the IAA were included in the Court Book. He expressed that he would like to consider this after the hearing and to consult with a lawyer. The applicant also expressed that he had faced difficulties with the multiple interviews that he had participated in and that his mind had been confused by panic and fear.
4. The applicant's post-hearing submissions do not indicate that the applicant was successful in engaging a lawyer. The submissions do suggest, in general terms, that the IAA "declined to consider" the applicant's "substantial evidence" (including country information) provided in support of the applicant's claims. However, no specific part of the materials was identified that the IAA was said to have failed to consider. It appears from the applicant's submissions that his real complaint is that the IAA "deemed [his] documents insufficient".
5. It is not apparent, upon my reading of the evidence, that there is sufficient basis for drawing an inference that any letter or other document provided to the IAA was not considered by the IAA. Although the applicant provided information and evidence in support of his claims (including country information), it is not apparent what argument could be made that any particular part of this evidence was not considered by the IAA. The IAA gave detailed reasons for not accepting that the applicant was a person to whom protection obligations were owed. Those reasons are summarised at [9]-[18] above. It has not been identified how this reasoning could be said to have been logically closed to the IAA, based upon the evidence that was before it. From my reading of the materials, a basis for such a finding has not become apparent.
6. It is understandable that the applicant may have been affected by strong emotions (including fear) during the interviews that were conducted. It is possible that this may have had some effect upon the evidence that he provided. I accept the Minister's submission, however, that it has not been demonstrated that it was logically closed to the IAA to have declined to accept that the applicant's mental health explained the difficulties that it has identified in his evidence (at [109]-[110]). Such reasoning appears to have followed from the IAA's reasoning at [46]-[57], where the IAA identified various limitations and difficulties in the medical evidence before it (including the limited assessment conducted and its dependence upon self-reporting). The IAA also relied upon its own impression of the applicant's observed ability to give evidence at the interview that it conducted.
7. It has not been demonstrated on the evidence before the Court that this reasoning was closed to the IAA, nor that the applicant's mental health issues precluded his ability to participate in the review process (during which he was represented and appears to have submitted substantial submissions and evidence to the IAA). It is not clear to me how an error justifying the setting aside of the IAA's decision could be established by reference to the applicant's fears and concerns (whilst understandable) during the review process.
8. At the hearing before the Court, the applicant suggested that, at his interview with the IAA, he was "trying to tell [his] case", but was told, "no, that's not relevant" and asked about his recent problems in his country. The difficulty of there being no transcript in evidence capable of proving exactly what was said at the IAA interview was discussed, although I observed that the IAA provided some summary of the interview in its decision. I also observed that it was unclear, from what had been said, what error the applicant was contending was made by the IAA. The applicant responded that he felt that the IAA had not listened to his explanation of his problems, but asked about the "grievance" he was having. After some discussion, the applicant expressed that the IAA had misunderstood the photographs regarding the sword attack. He expressed that the IAA had misunderstood that he was claiming that the photographs were of his sister, but his sister had gone to the hospital and taken the photographs that were "not for them but it was for the neighbour".
9. As the Minister observed, the evidence before the Court indicates that, in a statement dated 7 March 2024, the applicant had expressed that his "family members" had been attacked with swords (at CB 1024). The applicant had stated that specific family members had been admitted to hospital with "severe injuries", including his sister whose arm was said to have been "severed from the elbow". Photographs were annexed, in this context, said to be "depicting the injuries". Based upon this evidence, I accept the Minister's submission that it was open to the IAA to have understood the applicant to have claimed that the photographs were of his family members, including his sister. It was also open to the IAA, on the evidence before it, to have understood the applicant to have resiled from this claim (at [43]-[44]). The IAA's reasoning in this regard was supported by written submissions provided by the applicant's representative as follows (at CB 1175):

The Applicant deeply regrets providing the photographs and passing them off as his family. He apologises for this misrepresentation.

The Applicant instructs that he did so out of desperation and stress. He acknowledges that the decision to provide the photographs was wrong, and agrees that he can be easily led by his sister and makes poorly thought out decisions from time to time. He instructs that he is extremely fearful of being deported to Sri Lanka, and of being permanently separated from his Australian partner and young child.

1. At the hearing before the Court, the applicant referred to the IAA's reference to his criminal history and sought to explain the circumstances in which it occurred. However, as set out above and was discussed at hearing, the IAA does not appear to have considered the material before it regarding the applicant's criminal history to have been relevant to its review. Although comment was invited by the IAA on its proposed approach to this material, no comment was made by the applicant's representatives.
2. No contention of bias was raised in relation to the applicant's criminal history. I do not see how such a ground would be able to succeed in the particular circumstances of this case (in contrast to, for example, the situation in cases such as CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140). Significantly, in the present case, the IAA wrote to the applicant (via his representatives) notifying the material before the IAA and its proposed approach to that material: see for example Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 at [59] (Jagot J); see also BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [35] (Rangiah, White and O'Callaghan JJ). No objection to the IAA's proposed approach was raised by the applicant, or his representatives, to the IAA.
3. Consistently with that proposed approach, the IAA expressed in the preliminary part of its reasoning that it had not had regard to the material in the substantive part of its decision. Unlike in cases such as FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 (FSG17), there does not appear to be sufficient reason for doubting this in the context of the material in question. The material indicates that the applicant was convicted of offences in 2021 relating to assault, "stalk/intimidate intend fear physical etc harm (personal) - T2" and the destruction of property, which the applicant told the Department had related to a confrontation or fight he had been involved in, during 2020 (at CB 290). The material also indicates that the applicant had driving related offences and that his parole was revoked, which the applicant advised had occurred due to a misunderstanding after he had missed certain obligations due to hospitalisation. The offences were not such that they necessarily had a bearing upon the applicant's credibility, nor were they so obviously highly prejudicial (such as in FSG17) that they may have been expected to have subconsciously affected the decision.
4. At hearing, the applicant also referred to having replied "no" to having been "in the LTTE". However, the applicant stated that he had not known how to express the nature of his involvement with the LTTE. This was circumstances where he was "living in the LTTE-controlled areas and everyone was involved with those LTTE".
5. The Delegate's decision records a claim being made by the applicant at interview to have been "a member of the police force for the LTTE" (at CB 415). Submissions made on the applicant's behalf also made the claim that the applicant was an LTTE member and sought to explain why he had not been "fully candid about his LTTE membership" previously (at CB 346-349). The evidence and explanations that had been provided in this regard were considered by the IAA at [69]-[87] and [108]-[115] of its decision. It has not been demonstrated that this reasoning was logically unavailable to the IAA. I accept the Minister's submission that it was open to the IAA to have been concerned by inconsistencies in the applicant's evidence regarding his involvement with the LTTE as well as the other difficulties that it identified in his evidence (including the admissions regarding the sword attack claim that have been considered above). I do not see how relevant error could be found to have infected the IAA's reasoning on this basis.
6. The balance of submissions relied upon by the applicant at hearing and in the post-hearing written submissions appeared to be directed towards disagreeing with the reasoning of the IAA and endeavouring to persuade the Court that a different conclusion ought to be reached regarding his protection visa application. As I explained at the hearing of this matter, however, the role of this Court in this type of proceeding is limited. This Court has no power to set aside the IAA's decision on the basis of disagreement alone. The role of this Court is limited to assessing whether or not the IAA's decision was relevantly affected by some kind of legally relevant error. It is nonetheless understandable that the applicant may wish to explain his situation to the Court, with a view, as was suggested in his written submissions, to asking the Court to review his case "with compassion". Although sympathy can be and often is felt for applicants in migration cases, it cannot inform the question of whether the IAA's decision ought to be set aside.

1. It follows that the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.