AOO18 v Minister for Immigration & Citizenship [2025] FedCFamC2G 787

1. By an application filed in this Court on 7 February 2018 and amended on 21 January 2025 (Amended Application), the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On 11 January 2018 the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Safe Haven Enterprise (Class XE-790) visa (Protection Visa) (IAA's Decision).

1. The Applicant is a national of Sri Lanka. The Applicant is Hindu and a Tamil from Jaffna in the northern province of Sri Lanka.
2. The Applicant arrived in Australia on 18 October 2012. An irregular maritime arrival entry interview was conducted with the Applicant on 7 January 2013. The Applicant was invited to apply for a visa on 23 December 2015.

1. On 13 December 2016 the Applicant applied for the Protection Visa (Visa Application). A statutory declaration from the Applicant dated 20 November 2016 was provided in support of the Visa Application. A letter acknowledging the Visa Application was sent to the Applicant on 7 February 2017.
2. A request to attend an interview was sent to the Applicant by post on 3 April 2017. The interview took place on 20 April 2017 (Delegate's Interview).
3. To be granted the Protection Visa the Applicant was required to satisfy criteria at the time of his Visa Application and at the time of the IAA's Decision.[1]
4. The legislative scheme at the relevant times provided pursuant to s 36(1A)(b) of the Migration Act that an Applicant for a protection visa must satisfy at least one of the criteria in section 36(2).
5. Section 36(2) provided:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm;

1. Section 36(2A) defined the phrase "significant harm" in the context of s36(2)(aa) as:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

1. Section 5H defined the term 'refugee'. The definition included a person who has a nationality, is outside the country of their nationality and owing to a 'well founded fear of persecution' is unable or unwilling to avail themselves of the protection of that country. Section 5J provides a definition of the phrase 'well-founded fear of persecution'.
2. Pursuant to s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. In sections 5J(2)-(6) and 5K-LA additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out.
3. The Applicant made protection claims largely centred around his Father's alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE) during the civil war in Sri Lanka and his Tamil ethnicity. His parents owned a grocery store next to their home and the authorities believed his father provided goods to the LTTE. It was claimed that his father was held by authorities for 18 months and tortured.
4. After the war concluded the Civil Army (the civil arm of the Sri Lankan Army (SLA)) (Civil Army) became more established in the Applicant's area and monitored people with a history of alleged association with the LTTE including his Father. The Applicant claimed that the Civil Army would ask his father and brother to report to them regularly and despite their obedience they were beaten up many times during questioning. The Applicant also claimed that they were forced by the SLA to perform hard labour for free and that his mother became stressed and ill because of the situation. After the Applicant completed schooling he began working in the grocery store and was subjected similar treatment by the SLA to that of his father and his brother.
5. The Applicant left Sri Lanka illegally and he claimed the Sri Lankan authorities will arrest him at the airport if he is returned and the Civil Army will subject him to more severe harm due to his attempt to seek asylum in Australia.

1. On 26 April 2017 the Delegate refused to grant the Applicant the Protection Visa.
2. The Delegate was not satisfied that the Applicant was a refugee as defined by s 5H(1) of the Migration Act and therefore was also not satisfied that the Applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Migration Act.
3. The Delegate accepted that: the Applicant is a Tamil from Jaffna; his family ran a grocery store; his father was detained by the Sri Lankan Army for around 18 months due to real or perceived links to the LTTE; the applicant, his father and brother were questioned by the civil army between 2003 and 2009; from 2009 the Civil Army regularly harassed and interrogated and sometimes beat the father and older brother because of the father's imputed support for the LTTE through the provision of goods from his store; and in 2012 the Applicant was questioned, interrogated and beaten by the Civil Army.
4. The Delegate accepted that the Applicant and has family had experienced harassment, monitoring, arrest and or detention similar to other Tamils in the north in the aftermath of the war. The Delegate determined that the Applicant's father was not considered to be an LTTE member and therefore concluded that the Applicant's profile did not give rise to a real chance of serious harm.
5. The Delegate accepted that the Applicant will be fined for his illegal departure and the imposition of a fine does not amount to significant harm under the definition in s 36(2A) of the Migration Act. While it was accepted that there may be poor conditions in detention, any stay would be short. The Delegate considered country information and concluded that although the Applicant may be briefly subjected to poor conditions this does not of itself constitute significant harm as defined under sections 5 and 36(2A) of the Migration Act.

1. On 28 April 2017 the IAA sent the Applicant an acknowledgment letter confirming that the matter had been referred to it. A direction under s 473FB of the Migration Act setting out the requirements for dealing with the IAA was attached to the letter.
2. On 19 May 2017 the Applicant's representatives provided to the IAA written submissions in support of the application for review, a statutory declaration from the Applicant (Statutory Declaration) dated 9 May 2017 and a letter from the Applicant's father dated 15 May 2017 (Father's Letter). The Father's Letter was certified by the Divisional Secretary of Thenmarachchi in Sri Lanka.

1. On 11 January 2018 the IAA affirmed the Delegate's Decision. The Applicant was the notified the same day.

Consideration of 'new' information - section 473DD

1. The Applicant's material before the IAA raised new claims. These claims included that: in 2005 he took a lead role in celebrating 'Martyrs Day' at his school and was warned by the SLA regarding participation in such ceremonies; in 2006 the Applicant and his Father were interrogated by the SLA after the shooting deaths of two customers in the family store and were accused of supplying goods to the LTTE; a letter from the Applicant's father that post-dated the Delegate's Decision; a claim that the Applicant's wife had been sexually harassed by the SLA and the provision of country information that gave support to the sexual harassment claims.
2. It was asserted by the Applicant in the Statutory Declaration and through the Applicant's Agent that the new claims were only raised before the IAA because he was not represented before the Delegate, and that he was threatened and intimidated by the interview process.
3. The IAA was not satisfied that the claims regarding the Martyrs Day involvement and interrogation after the 2006 shooting deaths in the family store, the claims of sexual harassment and supporting country information was credible personal information or that this information could not have been provided to the Delegate before the Delegate's Decision was made. With respect to the interrogation after the 2006 shooting, sexual harassment and supporting country information the IAA also found that there were no exceptional circumstances that would justify the consideration of this new information.
4. The IAA found that the Father's Letter itself was new information. The IAA concluded that the letter was of little probative value and did not contain any additional information to the information that was already before the Delegate. The IAA was also not satisfied content of the letter was new credible personal information nor were there were exceptional circumstances that justify consideration of the new information.
5. It was contended before the IAA that Applicant's wife was the subject of sexual harassment at the hands of the SLA. The Applicant did not provide details of specific incidents of harassment nor did he explain whether the harassment had any connection to him. The IAA was not satisfied that exceptional circumstances existed to justify consideration of this new information.

(a) The Applicant's family owned a grocery store and that post 2006 that the father and brother were able to operate this business successfully which indicated that they were not being harassed by the SLA.

(b) In 1998 the Father had been detained for over one (1) year under suspicion of providing goods to the LTTE.

(c) Post 2006 neither the father or the brother were subject to reporting requirements to Sri Lankan authorities.

(d) The Applicant and his Family were questioned and harassed by the SLA immediately after the end of the conflict in 2009.

(e) The Applicant may have been detained and questioned by the SLA because of his father's detention and the Applicant's Tamil ethnicity.

(f) The Applicant was not suspected of supporting or being part of the LTTE.

(g) The Applicant himself has not been detained or presented as having a profile that would come to the attention of the Sri Lankan authorities because he was suspected of supporting or having links to the LTTE.

(h) The Applicant left Sri Lanka because he became aware of other people in his situation being shot and killed during interrogation.

(i) The Applicant was not was suspected of supporting or of having links to the LTTE nor that it could be imputed that the Applicant held pro LTTE opinions or involved with the LTTE himself.

(j) During the conflict and up until he left Sri Lanka in 2012 the Applicant suffered harassment, mistreatment and discrimination on the basis of his Tamil ethnicity and also because of the suspicion that his father was a member of the LTTE.

(k) The Applicant did not have a profile that would justify continued interest by the SLA or any other Sri Lankan Authority five years after departing that country.

(l) The Applicant was not on an airport watch list.

(m) The Applicant may be detained for a short period if he returned to Sri Lanka but was not satisfied that a brief period of detention would amount to serious harm.

1. The IAA ultimately held that the Applicant did not meet the requirements of the definition of refugee as defined in s 5H(1), did not meet s 36(2)(a), and having had regard to the Applicant's evidence and country information found that there is no real chance of the Applicant being harmed by authorities if he were returned to Sri Lanka. The IAA was not satisfied that the were substantial grounds for believing that there is a real risk he will suffer significant harm if he were returned to Sri Lanka and accordingly does not satisfy the requirements of s 36(2)(aa) of the Migration Act.

1. The initiating Application was filed in this Court on 7 February 2018, within 35 days of the date of the IAA's Decision as prescribed by s 477 of the Migration Act. The Solicitors for the Applicant filed a Notice of Address for Service on 30 October 2024. The Amended Application was filed on 21 January 2025.
2. Both the Applicant and the Minister were represented by Counsel at the hearing on 18 February 2025 (Hearing). I had the following material before me at the Hearing: the Court Book filed by the Minister on 7 December 2018, the Amended Application, the Response, the Applicant's Outline of Submissions and the Respondent's Outline of Submission. Both parties have also provided a list of authorities.
3. The Amended Application contains three grounds of review. Each ground of review contains what is described as "particulars". These particulars for all intents and purposes are review grounds in their own right, as such the Amended Application contains 12 particulars each of which allege a different jurisdictional error, only some of which appeared to be seriously pressed by the Applicant. I bring the parties' attention to the observations of His Honour Justice Colvin in Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 when considering a party's grounds of appeal where he stated at [441] to [442]:

[...] There must be a limit upon how far this Court is required to go in dealing with every contention that is floated into the air. Manifesting ingenuity in marshalling as many arguments as possible is no proper aspiration for a barrister: Giannarelli v Wraith (1988) 165 CLR 543 at 556. Counsel have a duty to assist the court 'by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner': Ashmore v Corporation of Lloyd's [1992] 2 All ER 486 at 493. A considerable part of the barrister's task is to make the forensic assessments required in order to focus any case upon its essentials. Directions concerning the filing of written submissions with page limits are procedural attempts to impose this discipline which should be scrupulously observed. If it is considered that there would be unfairness if a party was confined to the page limit then application can be made but parties should not take matters into their own hands by ignoring such limits or pursuing stratagems to frustrate their purpose.

When it comes to performing the barrister's forensic duty in the context of an appeal, there is a further responsibility to identify with precision the alleged error, understanding its significance in the overall scheme of the controversy between the parties. A point to be advanced in argument should either be considered to be of sufficient merit and significance after considering the nature of the subject matter of the appeal and the need to keep the dispute in proportion to what is ultimately at stake that it is clearly articulated and fully developed, or, if not, it should be put to one side. Where there is a failure to conform to these expectations the Court must, in the interests of efficiency, itself take on the responsibility of confining its consideration to those points which are considered to have sufficient merit or significance that they are appropriately addressed in reasons. Failure by a barrister to perform this responsibility cannot lead to the consequence that the appeal court must nevertheless consider every point. The resolution of appeals would collapse under the weight of a requirement of that character.

1. Where both parties are represented in judicial review proceedings of migration decisions his Honour's observations are apposite, it is incumbent on both Counsel and solicitor advocates to identify with precision the alleged error, to ensure that a ground of review is clearly articulated and fully developed - if this cannot be done that ground should be put to one side. The Court would be assisted by such an approach rather than having to deal with a "scatter gun" or "whack-a-mole" approach to grounds of review where the applicant holds the vain hope that one of the myriad of grounds put may be successful.

1. The IAA's Decision was made under the "fast track" review process in Part 7AA of the Migration Act. The fast track review process is a review on the papers where the IAA reviews a decision by considering review material provided to it by the Minister without accepting or requesting "new information". [2] The IAA is under no duty to interview a review applicant, to conduct a hearing or to request new information from the applicant. Section 473DB(1) of the Migration Act relevantly provided:

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

(a) without accepting or requesting new information; and

(b) without interviewing the referred applicant.

1. Section 473DC provides the circumstances in which the IAA may obtain "new information". The IAA cannot consider new material unless the criteria is met in s 473DD of the Migration Act.

Ground 1 - Did the IAA fail to consider relevant considerations?

1. The particulars to Ground 1 identify two basis for the alleged jurisdictional error:

(a) The IAA did not consider with the engagement required by law the 2017 DFAT Country Information Report on Sri Lanka dated 24 January 2017 (DFAT Report); and

(b) The IAA did not consider with the engagement required by law the question whether the applicant may suffer torture or harm during any stay in detention on return to Sri Lanka.

1. There is clear overlap between Ground 1 Particulars (a) and (b). The Applicant also submitted that that there is overlap between Ground 1 and Ground 3. I intend to deal with Ground 1 Particulars (a) and (b) together and separately from the particulars in Ground 3 in the interests of clarity.

1. There is no dispute between the parties that the DFAT Report was considered by the IAA. It was submitted by the Applicant that the IAA did not "consider with the appropriate engagement" that part of the DFAT Report pertaining to the "entrenched and pervasive culture of torture and abuse (with impunity) by the police and other authorities of persons in custody even for minor offences". Counsel for the Applicant submitted that the only reference by the IAA regarding the issue of mistreatment and torture is in paragraph [33] of its decision and then again in [40] when considering complementary protection. It was submitted that if the IAA had engaged, as legally required, with the material contained in the DFAT Report it would have found no basis to exclude a real though small chance of relevant harm to the Applicant as returning illegal emigrant who may be detained or imprisoned for a short period on their return Sri Lanka.
2. Counsel for the Minister submitted that the substance of the IAA's findings were to be found in paragraphs [22], [28] and [33] of the IAA's Decision. It was submitted that the essential finding of the IAA was that the Applicant did not have any profile, or an identity that would raise a concern with the authorities namely that the key risk factor being actual or perceived links to the LTTE was not satisfied. It was also submitted by the Minister that at paragraph [33] of its reasons the IAA identifies and rejects the claims made by the Applicant.
3. The true nature of the Applicant's submission, despite the manner in which it is expressed in written submissions, is that the IAA did not give, in the view of the Applicant, appropriate weight to that part of the DFAT Report pertaining to the "entrenched and pervasive culture of torture and abuse (with impunity) by the police and other authorities of persons in custody even for minor offences". It is not controversial that the weight to be attributed to and the assessment of country information is a matter for the IAA.[3]
4. I agree with the submissions of the Minister. It is clear that the IAA had appropriately engaged with the DFAT Report. The DFAT Report is footnoted throughout the IAA's Decision and in particular I note footnotes 15 and 16 to paragraph [33] evidences the IAA taking into account the DFAT Report. The weight given to the DFAT country information is a matter for the IAA. The Applicant has not made out an error in the IAA's Decision on this ground. Ground 1 Particulars (a) and (b) must be dismissed.

Ground 2 - Did the IAA err in its interpretation or application of the law?

1. Under Ground 2 the Applicant identified three (3) basis upon which it is alleged that a jurisdictional error occurred. The three (3) basis are:

(a) The Authority erred in finding that the following information was "new information" within the meaning of sections 473DC and 473DD of the Migration Act 1958 ("the Act"):

(i) "....that in November 2005 he took a lead role in celebrating Martyrs' day at his school. ....The SLA came to the school and photographed the event. They warned the principal not to engage in these activities in the future and his friends were also warned by the SLA." [...]

(ii) "....additional claims that the SLA interrogated him and his father after the shooting of the two customers 6n 14 August 2006." [...]

(iii) "...the applicant's father's letter dated 15 May 2017..." [...]

(iv) "...that the applicant's young wife is the subject of sexual harassment at the hands of the SLA and the applicant was unable to get a clear picture from his wife and/or his parents due to the sensitivity of such information...." [...]

(b) In the alternative to Particular (a) to this Ground, the Authority erred in finding that the information set out in that Particular was not "credible personal information" within the meaning of section 473DD(b)(ii) of the Act.

(c) Further or in the alternative to Particular (b), the Authority erred in not finding "exceptional circumstances" within the meaning of section 473DD(a) of the Act to consider the information set out in Particular (a) to this Ground.

1. Section 473DC(1) of the Migration Act defined new information as 'documents or information' that: were not before the Minister when the Minister made the relevant decision and the IAA considers may be relevant. Section 473DD of the Migration Act prohibited the IAA from considering new information unless either s 473DD(b)(i) or (ii) of the Migration Act were satisfied.
2. Justice Mortimer (as her Honour then was) in ALJ18 v Minister for Home Affairs [2020] FCA 491 described the operation of the legislative framework in the following manner at :

[34] Section 473DD(b)(ii) refers, as its text makes clear, to whether the information could have affected the delegate's consideration of whether to grant or refuse a protection visa. The reference to "not previously known" in s 473DD(b)(ii) could be a reference to what was known, or not known, by the delegate or the applicant or both. The language could also be suggestive of a more objective and hypothetical test, without reference to the state of mind of either the delegate or an applicant. [...]

[35] As Bromberg J explained in CSR16 at [42], the term 'credible' is used in s 473DD(b)(ii) as "a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not" [...]

[36] I respectfully agree [...]

[37] Finally, in terms of principle, it is important to recognise that the whole purpose of s 473DD is to deal with circumstances that is an exception to the usual way in which the Authority is required to review a decision. The usual way is set out in s 473DB - a review under Part 7AA is to be decided without accepting or requesting new information and without interviewing a visa applicant. Thus, the premise of s 473DD is that there is further "new information" that has not been disclosed to the delegate. The mere fact of non-disclosure is therefore not a sufficient basis for the rejection of new information, otherwise the purpose of the exception for which s 473DD provides would be frustrated. The objective of s 473DD is to take the non-disclosure as a starting point and then to require the Authority to engage in an evaluative exercise about whether there is, in accordance with the text of the provision, a sufficient justification to make an exception to the operation of s 473DB(1).

1. It is appropriate to deal with each of the Particulars to Ground 2 separately.

1. In the Applicant's written submissions, the Applicant deals with the sub-paragraphs in Ground 2(a) on a global basis submitting that the IAA's error was in finding that the information referred was new information for the purposes of ss 473DC and 473DD where in fact this information expanded on information that was already before the Delegate.
2. It is the Applicant's submission that the information regarding the Applicant's involvement in Martyrs' Day at his school made clear the continuing issues between the Applicant's family and the SLA.
3. The Applicant's Counsel in his oral submission focused on Ground 2(a)(iii) the corroborative letter of the father. It was submitted the opinion of the father contained in the letter could have activated a line of inquiry whereby the IAA could engage its power under s 473DC to get new information and give some weight to the 2017 opinion of the Father instead, it was submitted the IAA excluded this from its consideration and this was a mistake. It was submitted that the mistake about the Father's Letter was material.
4. The Minister submitted on a global basis that each item of new information referred to in the sub-paragraphs to particular (a) plainly meets the definition which is only aided by the descriptions used in the Applicant's material namely "explication", "additional detail", "corroboration", "further detail" in its submissions.
5. I accept the submissions of the Minister and agree that the matters or items referred to in the sub-particulars of Ground 2(a) are all documents or information that was not before the Delegate and that the IAA after engaging in an evaluative process determined that an exception to the general rule regarding new information should not be made. This is clear from paragraphs [10] to [14] of the IAA's Decision. Ground 2(a) must be dismissed, there was no jurisdictional error on the part of the IAA.

Ground 2(b) - Not credible personal information

1. It was submitted by the Applicant that the IAA was in error in its understanding and application of s 473DD(b)(ii) in finding that the information referred to in the sub-paragraphs of Ground 2(a) was not credible personal information. The Applicant's written submissions did not address each of the sub-paragraphs of Ground 2(a) in regard to the error alleged in Ground 2(b). The submissions made by the Applicant were global in nature. It was submitted orally that the information was "personal" as it was not general country information and that, considering the nature of the test with respect to credible personal information, which is a low bar, the information was not inherently unbelievable. It was further submitted that it was not rationally open to the IAA to find the information was not credible personal information and it should have considered same rather than excluded the information.
2. In response to a question from me regarding whether the Martyrs' Day information was personal information where to information sought to be relied upon referred to warnings by the SLA and to the Applicant's friends I was directed to paragraph [6] of the Applicant's statutory declaration that was before the IAA where the Applicant attests to being warned about participation in Martyr's Day observances by the SLA.
3. The Minister submitted with respect to the Martyrs' Day observance at the Applicant's school the IAA gave overlapping reasons for rejecting the information, namely the SLA warned the principal not to engage in the activities in the future, the Applicant's friends were warned by the SLA, the events occurred in 2005 and that there was no information that indicated that such participation resulted in further attention on the Applicant. It was for these reasons the IAA determined that this information did not meet the test that would allow an exception to the general rule.
4. The Minister asserted that the inference that the information was excluded because it was not credible or personal information contrary to authority, was not material to the IAA's reasons for its decision. It was submitted that the inference to be drawn from the Authority's reasons is that the Authority did not consider that this information may have affected the Delegate's consideration of the Applicant's claims.
5. In reliance on LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 it was also submitted by the Minister that if an error was made regarding the characterisation of the material as credible personal information the outcome would have been inevitable the same. I agree with this submission.
6. With respect to the Applicant's oral submission referring me to paragraph [6] of the Applicant's statutory declaration the Minister submitted that there was an absence of detail or specificity and that it was unsurprising that the IAA was not satisfied that the information may have affected the consideration of the Applicant's claims.
7. I agree with the submissions of the Minister. The Martyrs' Day information did not meet the test that would allow the exception to the general rule. I also accept that the inference to be to be drawn from the IAA's reasons that the IAA did not consider that this information could have affected the Delegate's considerations of the Applicant's claims. There was no misapplication of the law. No error has been identified, this ground must be dismissed.
8. It was submitted that in regards to the "Interrogation Information" as it is described in the Minister's written submissions, the inference to be drawn from the IAA's Decision is that the interrogation information was not considered credible because this important information was not recalled and mentioned at the Delegate's Interview. The Minister's submissions also dealt with the materiality of the interrogation information it was submitted that there was no realistic possibility that the IAA's Decision could have been effected if the interrogation information had been accepted as credible personal information because of matters accepted by the IAA: namely that the Applicant's family ran a grocery store, that the Applicant's Father had been arrested and detained for over one year by the SLA under suspicions of providing goods to the LTTE and his Tamil ethnicity and those matters upon which the IAA was not satisfied, namely that the shooting deaths were the result of any connection with the Applicant or his family or the Applicant having suspected links with the LTTE.
9. The Applicant did not elaborate on the Interrogation Information sub-particular beyond the global written submission that the information was not personal and it was credible in the sense that it was not inherently unbelievable.
10. I accept the Ministers submission that the inference to be drawn from the IAA's Decision was that the Interrogation Information was not credible because that this information was not disclosed or recalled at the Delegate's Interview. I am unable to identify a misapplication of the law or an error on behalf of the IAA on this ground.
11. With respect to the Father's Letter, the Minister submitted that an inference can be drawn that the IAA assessed the Father's Letter in accordance with the criteria in s 473DD(b) of the Migration Act as it described the Father's Letter as post-dating the Delegate's Decision and being of little probative value. The Minister contended that by the use of the descriptor "little probative value" it is to be inferred that the IAA rejected the proposition that the letter would have affected the Delegate's consideration of the Applicant's claims. There were no findings concerning whether the Father's Letter was credible personal information.
12. The Applicant did not elaborate on the Father's Letter sub-particular beyond the global written submission other than to submit that the information was not personal and it was credible in the sense that it was not inherently unbelievable.
13. I accept the Ministers submission that an inference must be drawn that the IAA considered that the letter would not have affected the Delegate's considerations of the Applicant's claims and that the letter had been assessed against the s 473DD criteria by reason of the use by the IAA of the phrase "little probative value" to describe the letter. No error was identified by the Applicant.
14. The Minister submitted that the findings of the IAA with respect to the Harassment Information, as it is described in the written submissions, did not specify specific incidents or events, when the harassment occurred or the connection with the Applicant. This gave rise to an inference that that the information could not have affected the delegate's consideration of the Applicant's claims. It was also submitted that the IAA's findings were not concerned with whether the information was credible or personal.
15. The Applicant did not elaborate on the harassment ground beyond the global written submission other than to submit that the information was not personal and it was credible in the sense that it was not inherently unbelievable. I accept the Minister's submission that the inference must be drawn from the IAA findings that the information could not have affected the consideration of the Applicant's claims.
16. No error was identified by the Applicant with respect to the treatment of the Harassment Information. This ground of review must be rejected.

1. In the Applicant's written submissions it is merely asserted that the IAA was in error by not finding exceptional circumstances within the meaning of s 473DD(a) of the Migration Act to consider the information described in the sub-paragraphs of Ground 2(a). It was submitted that the error engaged in by the IAA was a failure of the IAA to correctly apply the test in s 473DD(a) to find no exceptional circumstances with respect to the shooting information, warning received by the Applicant from the SLA and the sexual harassment information because this assessment was informed by the IAA's finding that this material was not credible information.
2. The Minister submitted that the Applicant's "bland" assertion of error should be rejected. I agree. There was no development of the argument on Ground 2(c) by the Applicant at the Hearing. I was not directed to any material by the Applicant that indicated that the IAA's assessment being no exceptional circumstances was informed by a finding that the information was not credible.
3. It appeared to me that the Applicant did not seriously press this ground either in writing or in oral submissions.
4. I have been unable to identify an error with respect to the IAA's findings regarding the finding that there were no exceptional circumstances regarding the information described as, 'shooting information', warning from the SLA or sexual harassment information. I am unable to identify an error by the IAA with respect to the application of s 473DD(a). This ground must be dismissed.

Ground 3 - Did the IAA's lack a logical probative basis or was it otherwise unreasonable?

1. The Applicant contended that the IAA fell into jurisdictional error in that it lacked a logically probative basis for its findings or was otherwise legally unreasonable.

"I accept that the applicant may have been detained and questioned by the SLA and that the reason for this was the result of his father's detention and his Tamil ethnicity. However, the applicant himself has not been detained or presented as having a profile that would have attracted the attention of the Sri Lankan authorities for reason of being suspected of supporting or having links to the LTTE and I do not accept that the applicant was suspected of supporting or being part of the LTTE."

(CB 210-211, [22, emphasis added.) .

This was contradictory and unreasonable, as the Authority had accepted that the father's detention was on the basis of suspicion of involvement with the LTTE. (CB 209-210, [19]-[20])

"....the applicant said that his father and brother were still able to operate a successful business which suggests that they are not being harassed by the Sri Lankan authorities."

(CB 211, [23]).

But the Authority had previously accepted that the Applicant's father, brother and himself were able to operate their business while being harassed by the Sri Lankan authorities. (CB 210, [20]) .

"....the applicant said that his father and brother were still able to operate a successful business which suggests that they are not being harassed by the Sri Lankan authorities. Country information also indicates that while some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities. For these reasons I do not accept that the applicant's father and brother are currently on reporting requirements or that his brother has been required to report more regularly after the applicant's departure from Sri Lanka."

(CB 211, [23], emphasis added.)

But the premises relied on by the Authority for its conclusion in this paragraph are not a logical foundation such as to exclude the possibility of continued reporting by the Applicant's father and brother, especially given the Authority's willingness to accept the greater part of the Applicant's evidence of his and his family's history.

I accept that during the conflict the applicant suffered harassment mistreatment and discrimination on the basis of his Tamil ethnicity and also as a result of his father's suspicion of being part of the LTTE. I also accept that since the end of the conflict up until he left Sri Lanka in 2012 the applicant was harassed on this basis. Taking into account the applicant's father having been detained for over a year in 1998/1999, I accept that the applicant may have been questioned over the years as a result, however, the applicant gave evidence at his SHEV interview that his remaining brothers and father continue to operate their store and that they have a good business. I am of the view that if the Sri Lankan authorities considered the applicant's brothers and father a continued threat, they would be unable to continue to operate a successful business or that they would have been detained further. The applicant's father was detained in 1998/1999 some nineteen years ago. Looking at the applicant's circumstances as a whole, I do not consider that he would be imputed to hold pro-LTTE opinions, or be suspected of ever having been involved with the LTTE himself...

...

I am not satisfied that he would now or in the reasonably foreseeable future be viewed as having been a member nor have any connections to the LTTE."

(CB 212, Decision [25], [26])

But the premises relied on by the Authority for its conclusion in this paragraph are not a logical foundation such as to exclude the possibility the Applicant would be imputed with pro-LTTE opinions.

"The applicant said that when the SLA attend his father's shop and ask questions they are mainly about him and that his brother has told him that the Civil Army has told him that they will target him on his return. I do not accept this claim."

(CB 212, Decision [25]).

But the Authority had no logically probative basis to reject the Applicant's evidence that his brother told that the Civil Army has told him that they will target him on his return.

(f) The Authority did not have a logically probative basis to exclude a real chance that the Applicant may suffer relevant harm because he fled Sri Lanka and has been out of the country since 2012, and the Sri Lankan authorities will be suspicious of him. (CB 212-215, [28]-[33], [40])

(g) Further or in the alternative to Particulars (a) and (b) to Ground 1 and Particular (f) to this Ground, the Authority did not have a logically probative basis to exclude a real chance that the Applicant may suffer relevant harm while under even short investigation on return, given the long standing abuses of human rights in Sri Lanka, including abuse of persons in detention or under investigation by the authorities. (CB 212-215, [28]-[33], [40])

1. Very early on in the Hearing I raised a concern that the IAA's Decision contained inconsistencies regarding the some of the findings made and asked to be addressed on this. The Minister described the IAA's Decision as "clunky". It was submitted by the Minister that I should view the Applicant's claims through the lens of the following time periods: before 2000, 2000 to 2009, 2009 to 2012 and 2012 onwards and that the clunkiness or inconsistencies in the decision fall away keeping in mind the time periods and what the claim is about.

1. It was submitted by the Applicant in writing that the findings of the IAA at paragraph [22] of its decision was contradictory and unreasonable as the IAA had accepted claims at paragraphs [19] and [20] of its decision that the Applicant's father's detention was on the basis of suspicion of the involvement with the LTTE. Orally it was submitted that the distinction that IAA draws is a distinction without substance and is in fact nonsensical. The Applicant went onto submit that the IAA's finding in paragraph [22] was the basis for the IAA's finding in paragraph [26] of the Decision. In reliance on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 the Applicant submitted that there was no logical probative ground for finding that the Applicant would be of no interest or have no profile that would raise suspicion about him. Further that the extent of the internal contradiction is so grave that that it is unreasonable.
2. I agree with Minster's polite assessment of the IAA's Decision as a 'clunky". I have taken a common sense and realistic approach[4] to understanding the IAA's Decision and have been aided in doing so by a chronological analysis of the IAA's Decision.
3. With respect to this ground a summary of the relevant findings of the IAA are:

(a) Prior to 1998 the Applicant's family operated a grocery store: IAA's Decision, [19].

(b) In 1998 the Father was arrested and detained by the SLA and that detention was in excess of one year: IAA's Decision, [19]; and that considering the length of the detention it was plausible that the father was detained under suspicion providing goods to the LTTE in addition to his Tamil ethnicity: IAA's Decision, [20].

(c) The Applicant and his family were displaced in 2000 and returned to their home in 2002 during a ceasefire: IAA's Decision, [20].

(d) Between 1998 and 2009, that is during the conflict, the Applicant suffered harassment mistreatment and discrimination on the basis of his Tamil ethnicity and also because of the suspicion that his father was part of the LTTE: IAA's Decision, [25].

(e) During the period immediately following the end of the conflict in 2009 the Applicant and his family were harassed and questioned by the SLA: IAA's Decision, [20].

(f) The Applicant was harassed from the end of the conflict until he left Sri Lanka: IAA's Decision, [25].

(g) In 2012 the Applicant:

(i) Began working in the family grocery business: IAA's Decision, [22].

(ii) May have been detained and questioned by the SLA because of his father's detention and his Tamil ethnicity: IAA's Decision, [22].

(iii) Has not been detained because of his personal profile: IAA's Decision, [22]; that is the Applicant was not suspected of supporting or being part of the LTTE: IAA's Decision, [22].

(iv) Became aware that other people in his situation being shot and killed during interrogation and decided to leave Sri Lanka: IAA's Decision, [22].

(v) Left Sri Lanka illegally: IAA's Decision, [27].

1. It was submitted by the Minister that the IAA accepted that the reason for the Applicant's detention and questioning was because of his father's detention. The Minister described the Applicant's detention as both qualitatively and quantitively different to the detention of the father. It was further submitted that that there was a clear distinction by the IAA between the findings of the past as they relate to the Applicant, the Applicant's father and how they relate to the Applicant in the present.
2. Looking at the findings of the IAA through the 'lens' suggested by the Minister that the finding of the IAA at first blush may be inconsistent. The findings with respect to the father pertain to the 1998 time period. The findings with respect to the Applicant pertain to the 2012 period. The Applicant only commenced working in the grocery store in 2012 after he finished his schooling. The IAA was not definitive in its finding with respect to the Applicant noting that he 'may' have been detained and questioned because of his father's detention and his Tamil ethnicity and imposed a caveat being that the Applicant himself was not suspect of supporting or being part of the LTTE. This finding was made after considering the country information in [22] that Tamils were detained during the time of conflict and the years following.
3. In paragraph [24] of the IAA's Decision the IAA considered country information in the context of the fears the Applicant had with respect to returning to Sri Lanka because of suspected links of he and his family to the LTTE. The IAA observed from the country information that: the situation for Tamils has markedly improved; monitoring and harassment has decreased, aside from high profile individuals with links to the LTTE who would be of interest to Sri Lankan authorities may be subject to monitoring; and there was no identification of discrimination other than societal discrimination.
4. In paragraph [26] the IAA made the following finding:

[...] Viewing the evidence together and noting the significantly improved country information since the Applicant left Sri Lanka I am satisfied that the Applicant does not face a real chance of harm from any Sri Lankan authority on the basis of being a Tamil male, any real or imputed support for the LTTE or familial connection to the LTTE now or in the reasonably foreseeable future.

1. In my view reading the IAA's Decision as a whole there was reasonable logical basis for the findings of the IAA. Ground 3(a) must be dismissed. No jurisdictional error has been identified by the Applicant.

1. In the Applicant's written submissions with respect to particular (b) it was submitted that the IAA had previously accepted that the Applicant's father and brother and himself were able to operate their business while being harassed. With respect to particular (c) it was submitted that the premise for the IAA's conclusion in paragraph [23] was not a logical foundation to exclude the possibility of continued reporting by the Applicant's father and brother especially given the IAA's willingness to accept the greater part of the Applicant's evidence of his family's history.
2. The Applicant accepted in that the country information referred to in the IAA's Decision at paragraph [23] indicated that overall monitoring of the Tamil community had greatly reduced "gets the Authority a certain distance" regarding the premise contained in paragraph [23] of the IAA's Decision.
3. The Minister submitted that the capacity of the father and brother to operate a successful business suggested that they were not being harassed by Sir Lankan authorities. I agree with this submission particularly in light of the country information referred to by the IAA in paragraph [23] and later in paragraph [24] of the IAA's Decision. I do not accept that the finding that the brother and the father operated a grocery store business while being harassed during the civil war was inconsistent with a finding that the father and the brother are not currently on reporting requirements and running a successful business.
4. There is no error identified, these grounds must be dismissed

1. The Applicant submitted that there is no logical foundation such as to exclude the possibility that the Applicant would be imputed with pro LTTE opinions on the basis that the IAA accepted, in the opening sentence of paragraph [25] that during the conflict the Applicant was subjected to harassment and discrimination because of his ethnicity and as a result of the suspicion that his father was part of the LTTE, that the Applicant was harassed on this basis until he left Sri Lanka in 2012.
2. Based on the country information referred to by the IAA in paragraph [24] that: "A person being of Tamil ethnicity would not in itself warrant international protection. Neither in general, would a person who evidences past membership or connection to the LTTE unless they have or are perceived to have a significant role in relation to post conflict Tamil separatism or appear on a 'stop' list at the airport". The Applicant was found not to be on a stop list. This is also consistent with a finding that the Applicant himself was not suspected of supporting or being part of the LTEE.
3. I accept and agree with the submission of the Minister that the IAA is not disregarding the past with respect to this ground but is not satisfied that it will continue into the future. I accept that no illogicality and consequently no error flows from the IAA's finding. This ground must be dismissed.

1. It was submitted that there was no logical probative basis to reject the Applicant's evidence that his brother told him that the Civil Army had told the brother that the Civil Army would target him on his return to Sri Lanka. It is suggested that the IAA has not explained why it found that the Applicant was not truthful about this. It is submitted that the only explanation is that this finding is in proximity to the finding regarding the operation of the family business.
2. I disagree and concur with the Minister on this point. The IAA did not accept the Applicant's claim in this regard because the IAA was not satisfied that the Applicant has a profile to justify the continued interest of the SLA or other Sri Lankan authorities five years after his departure from the country.
3. No error has been identified. This ground must be dismissed.

1. It is asserted that there is no logical probative basis to exclude a real chance of harm.
2. I disagree - the IAA considered the country information at paragraph [29] of its decision. The findings made were open to the IAA. I agree with the Minister's characterisation that the true nature of this ground is that the Applicant disagrees with the IAA's findings.
3. No error has been identified by the Applicant. This ground must be dismissed.

1. No jurisdictional error has been identified by the Applicant. I dismiss the Amended Application.
2. The Minister sought costs in a fixed amount. The Minister is to provide the specific amount sought in circumstances where I have dismissed the Amended Application after final hearing. The scale amount is prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3. Orders will be made accordingly.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] Migration Regulations 1994 (Cth), regs 790.21 and 790.22.

[2] Migration Act 1958 (Cth), ss 473CB and 473DB.

[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24]-[25]; EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796, [53] and the cases referred to therein.

[4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259.