BVZ16 v Minister for Immigration and Citizenship [2026] FedCFamC2G 185

1. Before the Court lies an application seeking judicial review of a decision of the then Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant the applicant a protection visa. For the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has found jurisdictional error in the Tribunal's decision. On that basis, the application has succeeded.

1. The applicant is a Sri Lankan citizen of Tamil ethnicity (Court Book (CB) 12, 14).
2. On 27 August 2012, the applicant arrived at Christmas Island with his wife and his brother as unauthorised maritime arrivals (CB 16, 66).
3. On a date not disclosed, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 10-23).
4. On 15 January 2013, he was granted a Humanitarian Stay (Temporary) (Class UJ) (Subclass 449) visa (CB 217).
5. On 13 July 2015, the applicant was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV) (CB 38-44).
6. On 15 August 2015, the applicant (with the assistance of a registered migration agent) applied for a SHEV (the visa). The applicant included his wife in the visa application on the basis they are members of the same family unit (CB 48). The application annexed supporting documents including a character reference letter, identification documents and a statutory declaration outlining his claims (CB 45-184).
7. On 27 November 2015, the applicant was invited to attend an interview scheduled for 4 December 2015 (CB 192-194).
8. On 3 May 2016, a delegate of the Minister refused to grant the applicant the visa (CB 213-240). The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) (CB 213-214).
9. On 6 May 2016, the delegate's decision was subsequently referred to the second respondent, the IAA, for review (CB 243-244).
10. On 22 May 2016, the applicant formally appointed a legal representative (CB 267-268).
11. On 23 May 2016, the applicant's representative provided written submissions addressing new information and exceptional circumstances for the purpose of s 473DD of the Act, including, inter alia, the applicant's new claim that he had been tortured whilst detained in the Sri Lankan Army Camp in July 2012 (CB 256-266).
12. On 16 June 2016, the IAA affirmed the delegate's decision not to grant the applicant the visa (CB 276-299).
13. The applicant sought judicial review in the Federal Circuit Court and then on appeal to the Federal Court of Australia. However, the matter was remitted to the IAA by the Federal Court on 18 August 2017 (CB 306-318).
14. On 23 October 2017, the applicant's solicitor submitted supporting evidence in relation to the applicant's claims of torture, including a medical report and psychological report (CB 352-357). On 1 November 2017, the applicant's solicitor provided the IAA with further written submissions and supporting material (CB 361-366).
15. On 3 November 2017, the IAA again affirmed the delegate's decision to refuse to grant the applicant the visa (CB 391-416).
16. The applicant again sought judicial review of the IAA's decision and the matter was again remitted to the IAA by the Federal Court on 17 December 2020 (CB 417-419).
17. On 14 and 25 January 2021, the applicant's new representative provided the IAA with written submissions and documentary evidence in support of his claim of torture, including country information and medical reports (CB 432-573).
18. On 24 February 2021, the applicant was invited to attend an interview scheduled for 3 March 2021 (CB 594-597).
19. On 12 March 2021, the IAA again affirmed the delegate's decision to refuse to grant the applicant the visa (CB 606-637).

1. On 12 April 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA's decision pursuant to s 476 of the Act. The applicant was unrepresented at that time and his application contained two grounds of review. The applicant filed an affidavit with that judicial review application which annexed a copy of the IAA decision.
2. On 28 August 2025, the applicant (now represented) filed an amended application for judicial review with grounds as follows:
   1. The IAA made a jurisdictional error by reasoning in relation to the credibility of the Applicant, and rejecting his account of having been detained and tortured in July 2012, in an irrational or illogical manner.

Particulars

a) The IAA failed to consider the consequences of the Applicant's psychological medical conditions on his ability to give evidence in support of his claims.

b) The IAA reasoned in an illogical or irrational or legally unreasonable way in relation to the inconsistencies between the Applicant's account of torture and the medical evidence.

c) The IAA unreasonably disregarded the medical evidence before it regarding the Applicant's medical conditions and their consistency with his account of torture.

1. The IAA made a jurisdictional error by making a finding of fact (evidenced at paragraphs [95] and [98]) that the Applicant's constipation and haemorrhoids had caused his anal fistula, in circumstances where:

   a) There was no evidence for that finding and it was contrary to the medical evidence relied on by the Applicant; or in the alternative

   b) The Applicant was not given an adequate opportunity to respond to the IAA's proposed finding.

1. The materials before the Court include:
   • the amended application for judicial review filed by the applicant on 28 August 2025;
   • the affidavit of the applicant affirmed and filed on 12 April 2021 (taken as read and in evidence at the hearing on 15 September 2025);
   • a Court Book numbering 637 pages (marked as Exhibit 1);
   • a Supplementary Court Book numbering 146 pages (marked as Exhibit 2);
   • written submissions filed on behalf of the applicant on 28 August 2025; and
   • written submissions filed on behalf of the Minister on 10 September 2025.

1. The applicant asserts that the IAA's rejection of the applicant's claim of having been detained and tortured in July 2012 was irrational or illogical.
2. This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 at [80]- [83] as follows:

[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).

[81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:

...[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[82] The correct approach, according to the High Court in SZMDS, is to enquire "whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it" (at [133]). At [135], the High Court stated:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...

[83] In Djokovic at [35], it was observed:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. In this matter, the applicant says that illogicality arises from the IAA's treatment of the medical and psychological evidence which had been provided in support of his claims. The applicant advances this argument on a number of fronts.
2. Firstly, the applicant argues that the IAA reached findings in respect of inconsistencies in the applicant's evidence without having regard to the medical evidence which may have explained those inconsistencies.
3. The applicant properly accepted that inconsistencies in an applicant's claims could form a relevant basis for credibility findings. However, consideration of any such inconsistencies requires a careful and thoughtful approach having regard to the particular exigencies involved in assessing protection claims (relying upon EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [42] (EVI19)).
4. In EVI19, Justice Stewart considered the authorities which have addressed the particular circumstances involving asylum seekers. Justice Stewart noted the following observations of the Full Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89 (W375/01A) at [15] per Lee, Carr and Finkelstein JJ:

As anyone with a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

1. Those comments are particularly prescient in respect of this matter where this was the third occasion that the IAA had considered the applicant's claims, and where the applicant had first been interviewed in respect of this matter in 2012 and was required to provide a narration about highly personal and traumatic matters on a number of occasions and in different contexts.
2. In this sense, the Court is guided by AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83 (AVQ15) where the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ at [44]) observed that labelling an inconsistency absent context and relying solely on that to make an adverse credibility finding ran the risk of legal unreasonableness. Earlier in that judgment at [28], the Full Court had observed that an assessment of inconsistencies:

...requires the decision-maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

1. At first blush, the IAA does appear to be alert to these issues. It noted at [60] that it was mindful of the difficulties and sensitivities of recounting traumatic experiences and, later at [82], acknowledged that sexual assault claims are difficult to disclose and that applicants may be reluctant to disclose them for many reasons including stigma, embarrassment and trauma.
2. However, the mere recitation of this requirement is not, of itself, evidence that this was the course charted by the IAA. Of concern is the fact that, aside from these perfunctory comments, there is no indication that they played any role in the IAA's assessment of the applicant's credibility.
3. That is all the more problematic where, as here, there existed further expert evidence in respect of the applicant's difficulties. The medical evidence contained a number of references where the applicant's shame and embarrassment were said to have acted as an impediment to full disclosure of some of the matters he endured. Given the appalling nature of the applicant's claimed treatment, it is hardly surprising that he was reticent in coming forth. No reasonable person would want to revisit such memories.
4. In addition, the psychologist report lends very strong support to the applicant's claims in respect of the impact upon his memory (CB 356):

Furthermore, [the applicant's] hypervigilance, sensitivity to reminders of his traumatic history and high levels of anxiety restrict his ability to verbalise specific details of his past experiences, such as recalling dates, locations and the time sequence of events; consistent with the scientific literature on the psychological impact of trauma. [The applicant] voiced that for him "the past is always present" and talking about it brings him directly back to his memories and intense emotional pain. He explained that he did not disclose the extent of the circumstances which led him to flee Sri Lanka in his initial interview with the IAA as he felt too traumatised by the memories, and he was accustomed to hiding his past due to stigma in Tamil culture which would have led him to be shamed.

1. The IAA was, of course, not required to uncritically accept this evidence. However, there is no indication that it intellectually engaged with the material in respect of how the expert evidence supported the applicant's claims regarding his memory difficulties and deep shame and embarrassment at recalling his abuse.
2. In this respect, the Court observes it is well established that a decision will be legally unreasonable where that decision lacks an "evident and intelligible justification" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ). Black CJ similarly adopts the term "active intellectual process" in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at [39]. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, Griffiths, White and Bromwich JJ stated at [47] that, in determining whether a decision-maker has engaged in an active intellectual process, the Court must:

...conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.

1. In this matter, the Court is not satisfied that the IAA engaged in an active intellectual process of assessing the medical evidence concerning the critical issue of whether there may have been a reasonable explanation for the applicant's reticence in disclosing sexual torture.
2. The applicant further challenges the IAA's placement of little weight on the medical reports. It is, of course, well established that the weight to be placed upon a piece of evidence is largely the province of the IAA (see Meerun v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 972 at [82], citing NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]). However, as always, that must be subject to the boundaries of legal reasonableness.
3. The relevant finding of the IAA is as follows (at [75]):

I have considered the medical evidence provided and the applicant's evidence. I place little weight on the torture claims or causation of his fistula (including scrotal abscess), scars or back pain set out in the medical documents as they are based on the applicant's self-report.

1. There are a number of difficulties with the IAA's reasoning here. Firstly, whilst it is a matter for the IAA to place whatever weight it feels is appropriate on evidence, it must be done rationally. The Court has some concerns with the dismissiveness with which the reviewer in this matter treats the collected acceptance of several highly qualified expert practitioners who all accepted the applicant's narration following the undertaking of proper medical and psychological assessment tools, mostly in the context of the applicant's ongoing health care as opposed to with respect to his immigration status. The tests undertaken by the experts certainly were not the subject of any analysis or intellectual engagement by the IAA.
2. If such analysis had been undertaken, it would have revealed that the medical practitioners did not simply accept the applicant's narrative but did so on the basis that his injuries were consistent with that narrative. That was based on a clinical assessment. In particular, the applicant's investigative scans revealed vegetable matter around the applicant's fistula which would be consistent with the insertion of a foreign body as claimed by the applicant. None of this was engaged with by the IAA.
3. The Court accepts that the IAA's treatment of the medical evidence was not reasonable. It failed to consider that evidence in respect of the applicant's ability to recollect important matters and his deep embarrassment in revealing horrific sexual abuse. It also failed to engage with the evidence on an intellectual basis but rather dismissed it cursorily. Its conclusion that the reports were based solely on the applicant's narrative was wrong. It ignored relevant clinical findings which objectively supported the applicant's claim.
4. Ground one is made out.

1. Through ground two, the applicant submits that the IAA made an error via a finding of fact where there was no evidence or, alternatively, where the applicant had not been given an opportunity to comment.
2. The applicant's complaint is directed towards [95] of the IAA's decision where the IAA stated:

I discussed with the applicant that constipation and haemorrhoids, which he had, could cause fistulas and that kidney stones (or blood in the urine) are not caused by blunt trauma from years previously. The applicant acknowledged that the kidney stones were a separate health issue but said his guess was that the fistula was because of all the torture.

1. The applicant submitted that there was no evidence before the IAA upon which it could have reached the conclusion that constipation or haemorrhoids could have caused the applicant's fistula.
2. The Minister submitted that the IAA did not make any finding about the cause of the applicant's fistulas. In this respect, the Minister submitted the IAA was not required to make any such finding because the medical evidence did not go so high as to say the fistulas were caused by torture but rather could have been caused by torture.
3. The Court does not agree that the IAA did not make any finding in respect of the cause of the fistulas. At [98], the IAA makes the following finding:

Having considered the applicant's evidence, his explanation and the medical evidence, I am not satisfied that the applicant's fistula or any medical problems or scars were caused as a result of torture or physical harm from CID or anyone.

1. That is a clear rejection of the applicant's claim of the cause of the fistulas. Whether the Minister is correct about the extent to which the medical evidence may have supported the applicant's claim in this regard is, to a large degree, irrelevant. That is because, other than an oblique reference to the medical evidence, it is not engaged with at all by the IAA. Furthermore, the reference to the applicant's explanation of the cause of his fistulas can only sensibly be a reference to the applicant's response to the IAA's positing that the fistulas could have been caused by constipation and haemorrhoids. There is nothing in the material that lends its support to the IAA's questioning. Whether it be correct or not, it appears out of nowhere, unsupported, and appears to solely rely upon the IAA's questioning of the applicant's own knowledge of the medical causation of the fistulas. This is clearly problematic.
2. The IAA's finding is also far more at odds with the medical evidence than was conceded by the Minister. In particular:
   • Dr Janarthanan expressly states that the applicant was traumatised by inserting a plastic tube into his rectum (CB 333).
   • Dr Sarles accepted the applicant's history that tubes were forcibly inserted into his rectum (CB 353-354).
   • On 28 September 2017, Dr Sarles stated the applicant was apparently assaulted and tortured by the Sri Lankan Army, including having plastic tubes pushed into his rectum (CB 507).
   • On 11 October 2017, Dr Sarles stated that the applicant was tortured in Sri Lanka in 2012, which included the forced insertion of tubes into his rectum. Dr Sarles opined on that occasion that his symptoms were suggestive of haemorrhoids and noted that the applicant was very shy about the problem (CB 511).
   • On 5 September 2018, Dr Sarles stated that the applicant had been detained and tortured by the army in Sri Lanka, during which he was beaten repeatedly around the scrotum, groin and perineum with metal pipes and kicked by their boots. He had considerable swelling following this (CB 513).
   • On 2 October 2018, Dr Sarles stated his histopathology indicated a granuloma with vegetative material and a fistula perhaps originating in the rectum. In the same referral, Dr Sarles stated the applicant had been assaulted previously with direct trauma to the perineum and scrotal area, which may be contributory to the formation of sinus and granuloma (CB 514).
   • On 20 November 2018, the applicant's first colonoscopy following referral for rectal pain revealed no significant haemorrhoids (CB 497).
   • On 19 January 2021, a report from the Queen Elizabeth Hospital stated that the applicant presented a letter from his GP explaining that he had been tortured in Sri Lanka and this may help explain why vegetable matter was present in the scrotal mass (CB 532).
3. What is clear is that the medical history presented by the applicant in relation to his ongoing medical and surgical treatment consistently relayed his history of severe torture. That history was accepted by his treating practitioners and, indeed, was found to explain his symptoms. In particular, his account of extreme torture explained the injuries to his scrotum and his anal fistula. The applicant's account of a foreign body being inserted into his rectum was consistent with the vegetable matter which was located in his scans. As for the IAA's consideration of whether the fistula was caused by haemorrhoids, a colonoscopy revealed no significant haemorrhoids.
4. Whilst there is some force to the Minister's contention that the IAA did not reach a finding in respect of the precise causation of the applicant's fistula, what is apparent is that the IAA rejected the applicant's claim without properly engaging with and, indeed in material respects, misunderstanding the medical evidence.
5. In the absence of any rational engagement with the material, the Court is left only with the statements made by the IAA. In that respect, the Court accepts that the IAA was not satisfied of the applicant's claim because it rejected the medical evidence (without explaining why) and relied upon the applicant's testimony (of which the only reference was the IAA putting to the applicant the unsupported view that his fistula could have been caused by constipation or haemorrhoids).
6. The IAA's failure to rationally engage with the medical evidence that was before it and its apparent reliance on a matter that was unsupported by the evidence has led it into error.
7. Ground two is made out.

1. This is now the third time the applicant's matter has been remitted by a Court. The applicant has been pursuing his protection claims for fourteen years. He suffers from significant medical conditions which an array of medical and psychologist practitioners attribute to injuries which they accept were sustained after objectively horrific treatment. The applicant has spent the best part of a decade being batted backwards and forwards between jurisdictions.
2. The Court has found jurisdictional error and the matter will be remitted once more, this time to the Administrative Review Tribunal, for the applicant to have his claims tested for a fourth time.
3. Of course, this Court must not involve itself with the merits of any claim. That is a jurisdictional Rubicon which cannot be crossed. Nevertheless, the Court does, once again, refer to the cautionary guidance of the Full Court in AVQ15 and W375/01A set out above in respect of the difficulties faced by applicants when asked to repeatedly recount claims relating to trauma and persecution.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.