ASZ18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 942

Note: The form of the order is subject to the entry in the Court's records.

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. Before the Court is an application seeking judicial review of a decision of the Immigration Assessment Authority (Authority) made on 25 January 2018, by which it affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant a Safe Haven Enterprise (subclass 790) visa (visa) to the applicant.

1. The following background and summary of the Authority's decision are derived from the written submissions of the first respondent, and the material in the Court Book. Unless otherwise indicated, they do not appear to be in dispute.
2. The applicant is a citizen of Sri Lanka of Tamil ethnicity, who arrived in Australia on 3 October 2012 as an unauthorised maritime arrival. On 10 February 2017, the applicant applied for the visa (CB 26 to 70).
3. The applicant claimed that in the 1990s he was rounded up by the Sri Lankan Army (SLA) and beaten on a number of occasions and that, at that time, it was not uncommon for the police or the SLA to suspect that Tamil men his age were involved with the Liberation Tigers of Tamil Eelam (LTTE). During that time, the applicant says the SLA burned down his family home.
4. The applicant claimed that in or about 2004 the LTTE approached him for financial support related to his having a particular job.[1] He claimed to have given the LTTE financial support for about 3 years, including by providing finance in a particular manner[2] (CB 131). In 2012, he was allegedly taken by the SLA to a camp where he was beaten and accused of helping the LTTE. With his father's assistance, he was released from the camp, but the SLA continued to investigate him (CB 132).
5. The applicant subsequently fled Sri Lanka for India and, later, Australia. The applicant claimed that, since fleeing Sri Lanka, the Criminal Investigation Department (CID) has been monitoring his former home and he fears he will be subjected to serious harm, including detention and torture from the SLA as a result of their suspicions of him supporting the LTTE.
6. On 13 April 2017, the applicant attended an interview with the delegate during which he made further claims which are set out in the delegate's decision record (CB 83). On 30 June 2017, the delegate refused the visa application (CB 123 to 149). The delegate accepted certain aspects of the applicant's claims but found, by reference to country information, that the applicant would not be harmed in Sri Lanka for any reason. The delegate found that the applicant did not satisfy the criteria for the grant of the visa.
7. On 5 July 2017, the delegate's decision was referred to the Authority (CB 150).
8. On 26 July 2017, the applicant's migration agent provided written submissions and country information to the Authority (CB 167 to 185).
9. On 25 January 2018, the Authority affirmed the decision under review (CB 192 to 207).

1. The Authority noted that much of the country information provided by the applicant's agent (UNHCR, UK Foreign office and DFAT report excerpts) had been before (and considered by) the delegate, and did not constitute new information.
2. The Authority considered an online report entitled "Full Statement by Ben Emmerson, UN Special Rapporteur on human rights and counter-terrorism, at the conclusion of his official visit" posted on 14 July 2017. The Authority found that report to not be credible personal information in relation to the applicant, although accepted that the report could not have been provided prior to the delegate's decision and that it therefore, otherwise satisfied s 473DD(b)(i) of the Migration Act 1958 (Cth) (Act). However, the Authority was of the view that there were not exceptional circumstances to consider the generalised report (which was about persons detained under the Prevention of Terrorism Act), and that it was not relevant to the applicant's circumstances. The applicant's agent had also not provided any explanation as to why the information should otherwise be considered.
3. The Authority noted that all other country information provided for the applicant predated the delegate's decision and, therefore, could have been provided earlier. The Authority also found it to be general information rather than credible personal information, and to not satisfy s 473DD(b) of the Act. Further, the Authority considered that exceptional circumstances did not exist because the information could have been provided earlier, and the information was general in nature.

1. The Authority accepted that the applicant is a Tamil Hindu male whose home was burned down in 1990, that he had been detained for a few hours on one occasion, and that he was rounded up many times during the 1990s. It accepted that, in 1995, the applicant was detained and beaten because he was a Tamil male. However, having reviewed the applicant's arrival and protection interviews and his visa application, the Authority found that the applicant had not provided a consistent account of his claims in relation to his employment, his support for the LTTE, his arrest and beatings (CB 195 at [11] to [14]).
2. In respect of the applicant's claimed support of the LTTE, the Authority referred to his evidence and found it to be inconsistent and lacking in detail. The Authority did not accept that the applicant provided financial assistance to the LTTE, nor that he was, pro LTTE, anti-government, an LTTE collaborator or fundraiser (CB 196 at [18]).
3. Based on the applicant's inconsistent evidence and the lack of detail provided, the Authority found the applicant to not be a credible witness. It did not accept the applicant was threatened or detained, beaten or harmed by the SLA or anyone else, nor that he was charged, investigated or of interest to Sri Lankan authorities (CB 197 at [26]).
4. While the Authority accepted that the applicant's home was burned down in 1990, he was rounded up many times, detained in 1995, and displaced in a refugee camp, it noted that these events were remote in time and that the security situation had improved significantly. It accepted that at least until the end of the civil war in 2009, Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities, that there are continuing detentions and torture of Tamils who may be suspected LTTE or criminals, even since the end of the war. However, the Authority did not accept the applicant was LTTE, suspected LTTE or a criminal (CB 198 at [27] to [29]).
5. In relation to the DFAT country information, the Authority did not accept that the applicant faces any harm from the CID by reason of having fled Sri Lanka or India from the CID, Sri Lankan authorities, paramilitary or other groups due to his being a failed young Tamil asylum seeker, now or in the reasonably foreseeable future, if he returns to Sri Lanka (CB 200 at [43]).
6. The Authority accepted that the applicant departed Sri Lanka illegally and, as a result, that he would face questioning, charges and a fine of up to 200,000 rupees on return. However, based on country information and the applicant's circumstances, the Authority did not accept that he faces a real chance of torture, interrogation, mistreatment on arrival in Sri Lanka or during the questioning process that would amount to systematic and discriminatory conduct as required by s 5J of the Act (CB 201 at [50]).
7. Having considered the applicant's circumstances and country information, the Authority was not satisfied there is a real risk the applicant faces significant harm in the form of discrimination, harassment or monitoring, or for any other reason (CB 202 at [62]).

1. The applicant commenced these proceedings by an application to show cause application filed on 19 February 2018, at which time he was unrepresented. The proceedings were initially docketed to a different Judge of the Court (first primary Judge). On 12 March 2018, a Registrar of the Court made orders by consent, inter alia, listing the matter for hearing on a date to be fixed before the first primary Judge, and granting leave to the applicant to file any amended application by 14 June 2018 (2018 Orders). On 25 June 2018, a proposed amended application was filed by the applicant raising 19 grounds of review. That application was filed outside of the time provided by the 2018 Orders and no leave was granted subsequently to the applicant to rely on it.
2. The proceedings were later placed in the central migration docket.
3. On 5 October 2023, a Notice of Address for Service was filed by the applicant (October NOAS), which indicated that while he remained legally unrepresented, he had received assistance from a solicitor in completing that document.
4. On 23 October 2023, a proposed further amended application was filed, which indicated that the applicant was now legally represented (by the same solicitor who assisted him with the completion of the October NOAS), together with a written outline of submission and a list of authorities. The proposed further amended application abandoned the grounds raised by the originating application,[3] and raised a single ground of review.
5. On 11 August 2024, a list of authorities and outline of submissions was filed for the applicant followed (on 12 August 2024) by a proposed second further amended application. The second further amended application repeated the ground raised by the earlier proposed further amended application.
6. On 9 September 2024, the proceedings were docketed to me, and I made orders on that date listing the matter for hearing on 11 November 2024 with timetabling orders pertaining to preparation for that hearing (September Orders).
7. At hearing, the parties appeared before me represented. The Affidavit of Ranjani Somasundaram[4] made on 17 September 2024 was read for the applicant (Transcript Affidavit). The Transcript Affidavit contains the transcripts of both the arrival interview (at Annexure "A") and the SHEV interview (at Annexure "B") with the English words transcribed, and the Tamil words translated and transcribed.
8. The Court Book (CB) was tendered at hearing by the applicant and marked as Exhibit "1A".

1. By the proposed second further amended application, the applicant raises the following ground of review (particulars omitted):

The IAA erred when it formed the view the Applicant was not a credible witness and so did not accept the Applicant:

• Provided financial support to the LTTE;

• Was threatened by the LTTE or was detained, beaten or harmed in 2012 by the army or anyone,

• Was charged or of interest or was being investigated by the LTTE

• Was or is an LTTE fundraiser, propaganda activist, LTTE collaborator

• Was involved in or suspected or LTTE Tamil Diaspora

• Is a TNA campaigner;

• Or that anyone has enquired of the Applicant since his departure from Sri Lanka or anyone is monitoring his home for his return.

And dismissed the Application.

In doing so, the IAA failed to exercise active intellectual process and came to unreasonable irrational and illogical findings thereby committing jurisdictional error.

1. By his ground of review, the applicant alleges that the Authority's conclusion at [26] of its decision, that he was not credible (CB 197 at [26]), was legally unreasonable, irrational or illogical as a result of the Authority having failed to engaged in an active intellectual process. The ground is attended by lengthy particulars (more akin to written submissions), which allege a series of individual 'errors' by the Authority that, when considered cumulatively, render the Authority's overall finding at [26] legally unreasonable. Those alleged errors are set out in the second particular to the ground from (a) to (f), by which, the applicant specifically contends that in reaching its conclusion at [26], the Authority misunderstood or disregarded the actual evidence, and drew unreasonable, irrational or illogical conclusions.

1. Particular (a) takes issue with the Authority's statement at [18] (CB 196) that:

the LTTE letters he provided at interview were dated 2006, and not 2007, as claimed in his written statement.

1. At the 2017 SHEV interview[5] the applicant claimed to have received three letters, two of which he provided, and the latest of which was dated "7/11/2006". The applicant says, by reference to a statement attached to his visa application that he referred to receiving one letter "in about 2007" requesting that he assist the LTTE and that this broad approximation of date should be taken to encompass his receiving a letter on 7 November 2006. The applicant says that at the 2017 SHEV interview, when the interviewer put the date discrepancy to him, he accepted that the written statement should have referred to 2006.[6] As a result the applicant says the Authority made a finding that was not supported by the material before it.

1. By particular (b), the applicant says that in a number of instances at [18] and [19] of the decision, the Authority erroneously criticised the applicant:

(a) for not having recalled accurately when he ceased providing support to the LTTE (at [18]). The applicant says he clearly qualified the period relevant as being "for the next three years or so", which expression the applicant says imports a generality to the claim; and

(b) for the brevity and lack of detail in his account of being detained in 2012 at the 2017 SHEV interview. The applicant says the Affidavit Transcript demonstrates that he answered the questions as asked by the interviewer, provided full responses and that his answers were neither brief, nor lacking in detail, as described by the Authority.

1. Particular (c) takes issue with the Authority's finding at [20] (CB 196) of its decision that:

His account was also inconsistent. For instance, late in the interview the applicant mentioned that he was charged upon his release. However, this was inconsistent with his written claims that the authorities told him they would be investigating further and he had to return when they called him...

1. The applicant says the Authority's construction of the word "charged" was too technical. This is despite the fact that it was the applicant himself who used the word "charged" in the 2017 SHEV interview.[7] The applicant says that his account of the 2012 detention was consistent with his other evidence, which he says the Authority then neglected to mention, and that there was no material before the Authority to conclude that the applicant had been formally charged (as understood in the context of Australian law) because he went on to state:[8]

O: OK. So that the last time when you were detained that time the Army charged you?

I: Did the Army charged you when they detained you at the last time?

A: they told they got information that I was in LTTE and I helped LTTE. And the last time they released me they said: "if we call you for questioning you must come."

I: They told me the Army told me that they had information to say that I have helped and I was, and I was with the LTTE.

O: Yep

I: And they release me on condition, that whenever they call be back I must report.

1. By particular (d), the applicant refers to the Authority's statement at [21] (CB 196) that:

Further the applicant claimed he was released on 14 September and left his home on 16 September, leaving Sri Lanka on 17 September, which was inconsistent with his written claims that upon his release his friend told him about a boat that was leaving within about a week.

and says that, at no stage, did he claim to have been released on 14 September but consistently claimed to have been released on 13 September.[9]

1. By particular (e), the applicant contends that the Authority was incorrect to state (at CB 197 at [21]):

When doubts were expressed that his release meant he was of interest, the applicant claimed he was released because the government had announced that they were not arresting Tamils. However, this was at odds with his claim made late in the interview that he was arrested

1. The applicant says the explanation given by him as to why he was released was not at odds with his evidence of being arrested. The applicant says that a clear implication arose from his evidence that the Sri Lankan Government's pronouncements in relation to rehabilitation efforts for LTTE members was ultimately false.[10]

1. By particular (f) the applicant says that, at the 2017 SHEV interview,[11] the delegate wrongly criticised him for having claimed to have left Sri Lanka in November, which led to the delegate putting various propositions to him about that alleged inconsistency. The applicant says he never claimed to have left Sri Lanka in November and that there are ample references to him having left in September.[12] The applicant says that while this error did not carry through to the Authority's decision, the aforementioned criticism ultimately infected the first of the credibility findings which constitute [26] of the Tribunal's reasons.
2. The applicant submitted overall that as result of the foregoing errors, the Authority did not accept many of the applicant's claims and that its non-acceptance was unreasonable, illogical and/or illogical.

1. The first respondent addressed the grounds in short compass, submitting that:

(a) it was open for the Authority to interpret the applicant's written statement (at CB 64 at [14]) as implying that the applicant received a letter dated 2007 given it states, "in about 2007", and not 2006 as the letter at CB 97 is dated;

(b) it was open for the Authority to perceive an inconsistency between the applicant's written claims indicating he ceased providing support to the LTTE in 2006 (CB 64 at [13]) and his oral evidence that this was 2005,[13] which are in terms inconsistent;

(c) by the applicant's evidence (as interpreted at Annexure "B" to the Transcript Affidavit at 53) say he was "charged" after being released in 2012. Accordingly, it was open for the Authority to find that this was a new claim at [20]; and

(d) the applicant was released on 13 September, not 14 September, so the Authority has made a factual mistake at [21]. However, the Minister submits that nothing turns on this. The perceived inconsistency was between the applicant saying that he left Sri Lanka on 17 September and his written claims referring to the boat leaving within about a week "shortly after" his being released (CB 65 at [20]).

1. The first respondent says reasonable minds could differ about whether the applicant's evidence was inconsistent, and that the Authority's findings to this effect do not (of themselves) demonstrate legal unreasonableness referrable to the principles identified in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Gummow A-CJ and Kiefel J and [130] to [131] per Crennan and Bell JJ.
2. It was contended that even if the Court were of a different view, the application must fail because, to succeed, the applicant must show that the Authority's ultimate decision was legally unreasonable, citing MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [33] per Kiefel CJ, Gageler, Keane and Gleeson JJ and Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [101] per Besanko, Banks-Smith and Colvin JJ.

1. Overall, while cast as an allegation that the Authority failed to engage in an active intellectual process resulting in unreasonable, illogical and irrational credibility findings in actuality, the applicant seeks to have the Court reconsider or substitute its own findings for those of the Authority. That is no part of this Court's task.
2. As the first respondent correctly observes, the first of the Authority's credibility findings (which is unchallenged by the applicant) is that in his entry interview, he failed to mention his support of the LTTE or his claim to have been detained in 2012 (CB 195 to 196 at [15] to [17] and [22]).
3. In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 per Kenny, Griffiths and Mortimer JJ (as her Honour then was) the Full Court of the Federal Court said the following at [41(d)]:

Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

1. I accept the submission of the first respondent that, in the instant case, the primary credibility finding of the Authority was that which is described at [45] above and that it is an independent basis for the Authority's reasoning.
2. By ground 1(a) the applicant refers to the finding of the Authority's at [18]. That paragraph warrants being set out in full:

The applicant claimed he provided financial support to the LTTE during the war. He claimed he provided financial support and melted gold jewellery for the LTTE. However, his account of this support, even once he did decide to disclose it, was also not consistent. For instance, in his written claims he states he provided assistance from 2004 for the next 3 years or so, providing them with money once a year. He stated he stopped providing support in 2007, despite being sent letters to provide support. However in his protection interview he claimed he provided money only on two occasions in 2004 and 2005. Further, the LTTE letters he provided at interview were dated 2006, and not 2007, as claimed in his written statement. I accept country information indicates that many people provided support to the LTTE or were compelled to pay LTTE taxes in LTTE controlled areas. However, I consider the applicant's account was inconsistent and lacked details. I consider if the applicant had provided support, he would have provided a more consistent account, rather than changing the story from 3 or more to only 2 occasions. Further, he would have recalled more accurately when he ceased providing support. Further, as discussed below, the supporting documentation was not consistent with his claims. I do not accept that he provided financial assistance to the LTTE or that he melted jewellery into gold bars for the LTTE customers or that he was or is an LTTE collaborator, fundraiser, pro LTTE or anti-government.

1. The allegation in ground 1(a) is directed towards a single sentence of that passage, namely that the letters were described as having been dated 2006 and not 2007 as was said in the applicant's written statement. I agree that this discrepancy is, at most, factual. I accept the submission of the first respondent that the discrepancy is so minor as not to demonstrate legal unreasonableness.
2. By ground 1(b), the applicant refers to an inconsistency between what the applicant said in his statement and what was said in the interview, namely that he gave money to the LTTE in 2004 and 2005, but not in 2006. I accept that it was open for the Authority to perceive there to be an inconsistency between the applicant's written claims in which he said he ceased providing support to the LTTE in 2006 (CB 64 [13]) and his oral evidence that in fact it was in 2005. Those dates are inconsistent. Again, I am not satisfied that even if the applicant is correct and the discrepancy was in error, and even if taken with the alleged error in ground 1(a), that it is legally unreasonable in the manner contended for.
3. By ground 1(c), the applicant takes issue with the question of whether he was "charged". The applicant says that one interpretation of the meaning of the word is that he was subjected to a legal process, which he had not mentioned previously. However, I am satisfied that the description the applicant gave was that he was "charged" after being released in 2012 and that it was open for the Authority to take this on its face and find it to be a new claim.
4. Lastly, in respect of ground 1(d), the first respondent properly acknowledges that there is a factual error by the Authority in that the applicant's oral evidence was that he was released on 13 September and that then Authority recorded this date as being 14 September. I agree that again, this factual error is not sufficiently material as to be jurisdictional and does not, individually or cumulatively constituted a finding which was legally unreasonable nor render the Authority's decision as such.
5. In my view, grounds (1)(e) and (f) merely seek impermissible merits review.

1. I am satisfied that the decision of the Authority is not affected by error as alleged, or at all. Absent jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
2. I will hear the parties as to costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Details anonymised to prevent identification

[2] Details anonymised to prevent identification

[3] Noting that the proposed Amended Application filed on 25 June 2018 had not been regularised in the interim by a grant of leave (see [21] above)

[4] A NAATI Certified Provisional Interpreter

[5] Annexure "B" to Transcript Affidavit at 27 to 29

[6] Annexure "B" to Transcript Affidavit at 29

[7] Annexure "B" to Transcript Affidavit at 53

[8] Annexure "B" to Transcript Affidavit at 53

[9] Annexure "B" to Transcript Affidavit at 45

[10] Annexure "B" to Transcript Affidavit at 44

[11] Annexure "B" to Transcript Affidavit at 39

[12] Annexure "B" to Transcript Affidavit at 39 and 45 and CB 3, 11, 12 and 46

[13] Annexure "B" to Transcript Affidavit at 27 to 28