COG19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 119

1. In the Decision, the Tribunal identified the relevant criteria to be considered when assessing whether the applicant satisfies the criteria in s 36(2)(a), (aa), (b) or (c) of the Act. The Tribunal addressed the test of whether the applicant has a well-founded fear of persecution both subjectively and objectively. The Tribunal also identified the need to consider whether the applicant faced a real risk of significant harm under the complementary protection criteria and the guidelines in Ministerial Direction No. 56, made under s 499 of the Act (PAM3).
2. The Tribunal then considered the claims and evidence relied on by the applicant in support of the application for the visa (CB 305 [21]). In paragraph [21(f)] of the Decision, the Tribunal identified the following claim (CB 306):

[21(f)] He realised that people were identifying him as being involved in people smuggling which worried him. A few days later, when they were out in the Tuk Tuk at around 11pm, two CID officers went to L's (a friend) house and asked his wife about his whereabouts. They also asked about the applicant's name and identified him as the person who was driving the red Tuk Tuk.

1. This was a claim that was articulated in undated written submissions prepared by the applicant's solicitor and submitted to the Tribunal before the first Tribunal decision dated 15 October 2015 (CB 125-69). It was also identified by the applicant in a statutory declaration made 24 October 2012 that was submitted with the application for the visa (CB 59-61; see in particular CB 60) and by the delegate of the Minister in the decision in December 2013 to refuse the application for the visa (CB 103).
2. The Tribunal also identified claims articulated by the applicant's solicitor at CB 306 [22] of the Decision. At CB 307 [22(g)], the Tribunal recorded a submission that:

[22(g)] There is a risk of significant harm occurring to the applicant from arbitrary deprivation of life. The applicant is fearful of returning to Sri Lanka where he may be implicated in a false smuggling case. The man who was guilty has made false accusations against the applicant to the CID who are now searching for the applicant. If returned, the applicant would be immediately targeted by the authorities as he is already known to them. The applicant's circumstances would be escalated on discovery that he had left Sri Lanka illegally and that he is a Tamil-speaking Muslim. L was detained by the CID and severely beaten.

1. In a further submission made by the solicitor for the applicant after the Tribunal hearing, the following claim was identified at CB 308 [23(b)]:

[23(b)] Individuals who are suspected of being involved in people smuggling are at risk of being detained upon re-entry to Sri Lanka. During their detention and given that the applicant is a member of a religious minority in Sri Lanka, it is plausible that he would be subjected to serious and/or significant harm. This is supported by country information. The applicant's fear of harm is therefore well-founded and if returned to Sri Lanka, "it would be highly likely that he would face persecution in the form of serious harm and even death".

1. The Tribunal considered the applicant's evidence at the hearing and the evidence of the applicant's father, given via telephone from Sri Lanka. At CB 309 [34] and [35], the Tribunal found that:

[34] The Tribunal accepts that the applicant has had approximately 7 years of education which might impact on his ability to give clear evidence. The Tribunal acknowledges that the events relating to L are claimed to have occurred 7-8 years ago and it is natural that one's memory about such events would be adversely impacted. The Tribunal has given weight to those matters.

[35] The difficulty is that the applicant's evidence lacked significant details, which means that the Tribunal is not satisfied that those events occurred. As outlined above, although the applicant was able to provide some details, his overall evidence in relation to those events was vague and general, raising some doubts about his credibility. On various occasions, the Tribunal prompted and sought clarification from the applicant about those matters but he did not provide those details. He continued to repeat his evidence that he had helped L and that he is wanted by the CID as a result.

[37] The applicant's father gave evidence that he is 70 years old, he lives in C alone and that he stopped working about 5 years ago. He stated that the police are looking for his son. The Tribunal asked him the reasons for the police looking and he said because the applicant and his friend had a problem. He said L is in hiding because the CID is looking for him. The Tribunal asked repeatedly about the nature of the problems and the witness did not appear to be able to clarify the nature of the problems. He referred to getting news in the village about problems which led to the applicant's departure. The Tribunal asked the witness if they had a neighbour called L and he confirmed that they did and said L was his son's friend. The Tribunal asked him when he last saw L and he said it was about a year ago. He said L is an "invalid" and that he "collects people" to send to Australia. The Tribunal asked the witness if the applicant has been accused of helping L and he replied "nothing like that".

[38] The Tribunal found the evidence of the witness to be vague and lacking in details relating the nature of the issues concerning the applicant in Sri Lanka. The Tribunal acknowledges that the witness is elderly and was giving evidence via the telephone which could have impacted his ability to provide a coherent account. This has meant however that his evidence does not in some ways support the applicant's claims. In fact and as raised with the applicant in accordance with s.424AA, the father's evidence is adverse to the applicant; the father gave evidence that the applicant was wanted for departing Sri Lanka and he confirmed that the applicant has not been accused of helping L. The father did not know that apparently the CID is after the applicant for helping L in people smuggling. The Tribunal has noted the evidence that L "collects people" to send to Australia which could mean people smuggling, the witness did confirm that the applicant has not been accused of the same by the Sri Lankan authorities.

[40] The applicant's evidence about L being taken by the CID is confused and contradictory. Moreover, the Tribunal is of the view that if L had been taken by the CID, the father's evidence that he saw him last about a year ago means he has returned. So if L was taken around 2012 but returned, that would suggest that he is no longer of any adverse interest to the Sri Lankan authorities and consequently this would undermine the applicant's claims that he or L is wanted. The Tribunal appreciates that L's return does not necessarily mean that the applicant is of no interest to the Sri Lankan authorities, but the core claim is that L was involved in people smuggling and if he has been released, it would suggest that those matters have been resolved.

1. At CB 320-3 [77]-[86], the Tribunal purported to consider country information regarding the question that it posed at CB 320 [76], as follows:

Would the applicant be harmed on the basis of being a failed asylum seeker or a returnee from a western country who left Sri Lanka unlawfully?

1. At CB 321-2 [80], the Tribunal considered a May 2018 DFAT Report providing an assessment of 'those suspected of people smuggling'. In paragraph [5.35], the Report provides:

[5.35] DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures...

1. At CB 322-3 [83]-[85], the Tribunal concluded:

[83] On the evidence before it, the Tribunal is not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution as contemplated by s.91R(1)(c). This includes processing at the airport, questioning, or being fined. On the evidence before it, the Tribunal does not accept that, in the applicant's particular circumstances and with his attributes, he would be persecuted for any Convention reason, as contemplated by s.91R.

[84] Having considered the information before it, the Tribunal is not satisfied that the treatment faced by the applicant as a returnee who departed Sri Lanka unlawfully, amounts to persecution or gives rise to serious harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant's personal profile and current, post-Easter 2019 situation in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

[85] Therefore, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly from one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, being of the Muslim faith, a Tamil-speaking Muslim, a failed asylum seeker, or for his illegal departure, or for any other reason, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future.

1. The Tribunal also considered the complementary protection criteria and was not satisfied that the applicant's circumstances established substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm (CB 323-4 [87]-[95]).
2. Critical to the Tribunal's findings in the Decision regarding the applicant's claims were the findings at CB 309 [34]-[35], 310 [41]-[42], CB 311 [47] and CB 322 [81] that the applicant made false claims regarding his girlfriend, and that he was of Tamil ethnicity. The Tribunal also found that the applicant was not involved in the activities of L, and was not satisfied that L (if he exists) was involved in people smuggling. The Tribunal was not satisfied that the applicant assisted L, that the applicant is wanted by the Sri Lankan authorities and that the applicant feared harm, should he return to Sri Lanka.

1. On 28 June 2019, the applicant filed an application for judicial review with this Court seeking judicial review of the Decision. In that application, the applicant identified five grounds of review. The applicant subsequently filed an amended application for judicial review on 7 October 2025 in which the applicant identified the following five amended grounds of review:
   1. The Administrative Appeals Tribunal (Tribunal) failed to consider the Applicant's claim that since he had been in Australia, several individuals had implicated him in people smuggling activities.

The Applicant made this claim during the hearing before the Tribunal on 7 May 2019. The Tribunal failed to address this claim in its reasons of 3 June 2019.

1. The Tribunal's finding that the Applicant's claim concerning his past involvement with people smuggling was not credible was unreasonable, or constituted a failure by the Tribunal to discharge its statutory task.

Particulars

The relevant reasons of the Tribunal are at CB 309 [34]-[35].

1. The Tribunal's finding that the Applicant did not face a real chance or risk of harm as a Muslim in Sri Lanka was inconsistent with its factual findings. The Tribunal either misconstrued the facts or evidence before it or the threshold for a 'real chance' or 'real risk' of harm.

Particulars

The relevant reasons of the Tribunal are at CB 314-319 [58]-[69].

1. The Tribunal concluded that any real chance of harm faced by the Applicant from increased insecurity in Sri Lanka did not mean that he satisfied the protection criteria, because Sri Lanka had 'taken reasonable measures that accord with international standards' to address that chance. However, it failed to separately assess the implications of the increased insecurity in Sri Lanka for the application of the complementary protection criterion.

2. The Tribunal failed to comply with s 424AA of the Migration Act 1958 (Cth) as then in force.

Particulars

At the hearing on 7 May 2019, the Tribunal presented information to the Applicant in purported compliance with s 424AA, but used the incorrect formulation 'could be the reason, or part of the reason' to affirm the Delegate's decision, instead of 'would be the reason, or part of the reason'; and failed to sufficiently particularise the information that it considered it was obliged to draw to the Applicant's attention under s 424AA.

1. The original application for judicial review was supported by an affidavit by the applicant in which the applicant simply annexed a copy of the Decision and deposed that the Decision was 'infected by jurisdictional errors which are set out in my application for judicial review'.
2. The hearing of the amended application for judicial review took place in person at Melbourne on 28 October 2025. Mr J. Maloney of counsel appeared for the applicant. Mr B. Kelly of counsel appeared for the Minister.
3. At the hearing, the applicant sought to rely on an affidavit from the applicant's solicitor affirmed 8 October 2025 that annexed a transcript of the hearing before the Tribunal on 7 May 2019 (Exhibit A1). Reliance was placed on an exchange at page 13 of the transcript as follows:

SENIOR MEMBER: You have not suggested, and you have not claimed that any harm has come to any member of your family, all of whom remain in Sri Lanka.

INTERPRETER: I just answered whatever they asked. They're still coming home for looking, no one stays in the house. The people who go back are getting arrested at the airport, and they are making complaint or telling information that [COG19] is the one collecting - or collected people. The people who went back, especially a lot of boys who went back from - who were from my village have talked. They are not told the people who were in that country, they were just telling my name because I am here.

SENIOR MEMBER: What have they told?

INTERPRETER: First, actually they have been brought before the court case, and they were asked, 'Who sent you by boat?' So the CID questioning them, 'Who sent you by boat?'

SENIOR MEMBER: Mr [COG19] I have no idea what you're talking about. My question to you is this, you told me earlier that you have four siblings and your father in Sri Lanka. You told me that they were working.

1. It was submitted that this passage showed that the applicant clearly raised as a claim that he feared persecution because he has recently been accused by others of involvement in people smuggling (ground one of the amended application for judicial review). So too a passage at transcript pages 22-3 where the applicant expressed concerns regarding 'people putting the blame onto people who were not in the village...CID is visiting or looking for me' for people smuggling.
2. The transcript reveals that the applicant's evidence was often confused and did not necessarily respond directly to the question asked by the presiding member. The transcript also reveals that the questions asked by the presiding member showed concern as to the credibility of the applicant's claims and focused on apparent inconsistencies in the applicant's previous claims and evidence. In particular, the statement in the applicant's statutory declaration made 24 October 2012 that the applicant was of Tamil ethnicity, when in fact he claims to be a Tamil-speaking Muslim (CB 59-61).
3. Counsel for the applicant and for the Minister relied on outlines of written submissions filed with the Court and made oral submissions consistent with them at the hearing.

1. Counsel for the applicant addressed each of the amended grounds of review.
2. In relation to ground one, it was submitted that the Tribunal failed to consider a 'substantial and clearly articulated claim.' The claim was that since he had been in Australia, other Sri Lankans who had returned to Sri Lanka had named him as a person responsible for smuggling them from Sri Lanka to Australia. Reliance was placed on the applicant's evidence at transcript pages 13, 22 and 23. The Tribunal failed to consider this claim and the Tribunal's incomplete assessment of the applicant's claims 'deprived the applicant of a realistic possibility of a different outcome' (Nathanson v Minister for Home Affairs [2022] HCA 26 at [33] (Nathanson); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] and [15]).
3. Secondly, the Tribunal's findings as to the credibility of the applicant's evidence and claims were legally unreasonable. Reliance was placed on the observations and findings of Bromberg J in CIC15 at [25]-[27] where his Honour held that the Tribunal at the first hearing made findings as to credibility that lacked a rational and logical basis. It was submitted that the Decision was 'no less impugned by his Honour's reasons'.
4. It was submitted that the Tribunal's reasoning as to credibility in the Decision was 'conclusory and insubstantial' and 'did not explain why it found the applicant's evidence wanting'. The Tribunal's rejection of the applicant's evidence as a complete fabrication was unreasonable and amounted to a failure to discharge the statutory task (AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [28] and [48]; EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 (EVI19) at [36] and [148]).
5. It was submitted that the Tribunal also failed to properly assess the real risk of harm to the applicant as a Tamil-speaking Muslim, especially where country information showed heightened insecurity for Muslims in Sri Lanka and a risk of harm. The findings by the Tribunal in the Decision at CB [62]-[68] were inconsistent. The Tribunal failed to address the question of whether the applicant faced a 'real risk' of serious harm, but instead considered whether Sri Lankan authorities had taken steps to alleviate harm to Muslims (Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 at [36] (MZYYL); AMO18 v Minister for Home Affairs [2020] FCA 1403 at [28(9)] (AMO18); Ponnudurai v Minister for Immigration and Multicultural Affairs [2020] FCA 91 at [12]; and CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [23]). This misapplied the reasoning of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [26]- [29] (S152).
6. Finally, the Tribunal failed to afford the applicant procedural fairness when putting doubts to the applicant about the credibility of his evidence. Reliance was placed on transcript page 34 where the presiding member put adverse information to the applicant in purported compliance with s 424AA of the Act. It was submitted that the Tribunal did not comply with s 424AA because the Tribunal mistakenly put that the information received orally 'could be the reason' for affirming the delegate's decision and not 'would be the reason', or part of the reason, for affirming the decision under review (s 424AA(1)(a) of the Act and MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 at [62]- [65] (MZYFH)). This was a material jurisdictional error.

1. Counsel for the Minister acknowledged that a failure to consider 'a substantial and clearly articulated claim' could constitute a material jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (NABE) at [55], [58] and [63]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [41] and [42] per Allsop J (Htun)). However, the requisite level of engagement will vary depending on the length, clarity and degree of the representations (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25]).
2. It was submitted that the Tribunal expressly identified the claims referred to by the applicant in the transcript in the Decision at CB 302-4 at [21], [22(g)] and [23(b)]. The claim now articulated was part of a broader claim considered by the Tribunal that the applicant was concerned that he would be persecuted because he was suspected of participating in people smuggling. This claim was considered and rejected by the Tribunal on the evidence.
3. Further, the Tribunal's finding regarding the applicant's past involvement with people smuggling was not legally unreasonable. The relevant inquiry for the Court was whether the process of reasoning engaged in by the Tribunal was open to it (Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43] per Gordon J).
4. The conclusions reached by the Tribunal at CB 309 [35] must be read in the context of the findings at CB 308-9 [28]-[33] and 310 [42], and were independent and rationally cumulative. These findings were open, and were logical and rational when considered as a whole.
5. The Tribunal also applied the correct legal test when assessing the applicant's real chance of significant harm. It was submitted that the Tribunal identified the correct legal test at paragraphs CB 303-4 [6]-[19] of the Decision. The Tribunal was not satisfied of a real chance of significant harm after considering all the evidence because:

(a) The applicant did not refer to any harm he had previously suffered on the basis of his religion in Sri Lanka;

(b) The DFAT Reports conclude that Sri Lankan Muslims face a low risk of official or societal discrimination;

(c) The Tribunal acknowledged that following ISIS linked terrorist attacks in April 2019, there is a current level of insecurity in Sri Lanka and that Muslims could be targeted. It is also plausible that there is an increasing suspicion of Muslims; and

(d) The Tribunal was not satisfied that there is a real chance or a real risk of the applicant facing serious or significant harm on the basis of his Muslim faith.

1. These were logically consistent findings. The Tribunal did not find, because it could not on the evidence, that all people or men of Muslim faith suffered a real chance of harm in Sri Lanka. Therefore, the Tribunal applied the correct legal test when considering the complementary protection criteria at CB 323 [88].
2. Further, when read fairly and in context, the Tribunal's findings regarding the complementary protection criteria do not reveal any error. The only claim made by the applicant was a fear of harm as a Muslim man following the Easter attacks in Colombo in 2019. The Tribunal was satisfied by country information that the level of security provided by Sri Lankan authorities was sufficient to remove any real chance of significant harm and therefore the complementary criteria were not met. The reasoning of the Tribunal at CB 323 [88] showed no error in the application of the statutory criteria or a failure to consider the claim to complementary protection.
3. Finally, the Tribunal did comply with the obligation of procedural fairness when providing the applicant with particulars of adverse information. Compliance with s 424AA of the Act does not require that the Tribunal repeat the very words of that provision (see SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 at [29] per Flick J; SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [30]). Each case depends on the particular facts. Here, the Tribunal was clear that the evidence of the applicant's father did not assist the applicant's case and may be adverse to his claims for protection. This was because the father did not corroborate the applicant's evidence that the Sri Lankan CID was looking for him or 'after him'. The Tribunal ensured, as far as is reasonably practicable, that the applicant understood why the information was relevant to the review. Use of the word 'could' rather than 'would' did not mislead the applicant as to the consequences of the information. It was submitted that the applicant was told that he did not have to respond immediately to the information and could take more time to think about his position, but elected to respond immediately.
4. Therefore, there was no failure to provide procedural fairness by non-compliance with s 424AA of the Act and ground five should be dismissed.

1. In reply, Mr Maloney addressed grounds three and four of the amended application for judicial review and submitted that the Tribunal misconstrued the real chance test and the relevance of the applicant's access to effective state protection at CB 323 [88]. The level of state protection available does not fall to be considered after first assessing whether there is a real risk that the applicant will suffer significant harm under s 36(2)(aa) of the Act. Section 36 must be construed as a whole and when assessing "real risk". The Tribunal must consider the s 36(2B) considerations when assessing "real risk' and not after that assessment. It is not a two-step test (see MZYYL at [36], [39] and [40]; AMO18 at [28(9)]). S152 does not advocate for or stand as authority for the approach taken by the Tribunal. The real chance or real risk test should have been properly considered by the Tribunal when assessing the applicant's claim to be at risk as a Muslim man returning to Sri Lanka. However, it was not properly addressed in CB 323 [88] of the Decision because the Tribunal simply adopted the erroneous reasoning applied in relation to assessment of persecution under s 36(2)(a) of the Act. The findings at CB 323 [88] were conclusionary and did not explain how the Tribunal reached the conclusion that s 36(2)(aa) of the Act was not satisfied. The reasoning of the Tribunal must be transparent but was not. This was a material jurisdictional error by the Tribunal.

1. There is no dispute in this proceeding that the Tribunal must actively engage with and consider a claim raised by the evidence and the contentions before it, and a failure to do so may result in a failure to conduct the review required by the Act (NABE at [55] and [63]).
2. In this case, the evidence of the applicant captured at transcript pages 13 and 22 disclosed a claim by the applicant of a recent concern (as recently as two or three months before the Tribunal hearing) that returning asylum seekers had identified the applicant as involved with people smuggling. This was a representation or integer of the broader claim that the applicant was suspected of people smuggling as a result of his association with L and because he drove L to meet with asylum seekers in a red tuk tuk. The Tribunal did not engage with this claim or consider it when rejecting the applicant's evidence regarding his fear of persecution. It was not a claim of a fear that he was a person of interest to the CID because he was involved in people smuggling or his association with L, but a fear of reprisal because others were now identifying him as a people smuggler because he was in Australia and had not returned. This was a claim that was expressed by the applicant in his evidence but the subtlety of which was not addressed by the Tribunal in the Decision. I agree with the submissions of counsel for the applicant that this was a distinct claim that the Tribunal failed to consider, and which could have led to a materially different outcome (Nathanson at [33]).
3. The Tribunal did consider the broader claim made by the applicant as first articulated in his statutory declaration, identified by the delegate and in the submissions to the Tribunal before the first hearing, but I am not persuaded that the claims clearly arising from the applicant's evidence at the hearing on 7 May 2019 were addressed in the Decision, even when read as a whole and adopting a 'slow' or cautious approach to finding error in the reasoning of the Tribunal (NABE at [53] and Htun at [42]). The Tribunal did not consider all of the claims made and did not complete the statutory task embarked on and required by the Act.
4. Further, the transcript at page 13 (and extracted at [28] above) and the Tribunal's reasoning at CB 322 [81] also reveals that the member misunderstood the evidence and claims made by the applicant. The transcript reveals that the applicant was not addressing the question asked by the Tribunal about fear of harm to his family members in Sri Lanka. The applicant was in fact addressing a question asked at page 12 of the transcript regarding why he thought he was a person of interest to the CID. The transcript reveals a high level of confusion arising from the questions asked by the member, and the manner in which they were put to the applicant who was clearly confused, had a limited understanding of the hearing process and the relevance of the questions asked.
5. When considering the question posed at CB 320-3 [77]-[86] (see paragraph [20] above), the Tribunal also misunderstood the distinction relied on by the applicant in further submissions (referred to at [15] above) between the risks faced by asylum seekers upon their return to Sri Lanka and persons who were suspected of people smuggling. This misunderstanding is reflected in the reference to the May 2018 DFAT Report at CB 321 [80] in the Decision where there is a distinction made between returnees that were fee paying passengers, and the facilitators and organisers of irregular migration. However, the Tribunal did not consider this distinction when considering whether the applicant had a well-founded fear of persecution upon return when concluding at CB 322 [81] that he did not have such a fear because he was simply returning as someone who departed Sri Lanka as a mere passenger 'illegally'.
6. This error alone is sufficient to warrant remittal of the review to the Administrative Review Tribunal to reconsider the applicant's application for review in accordance with law. However, that error is not the only reason that the Decision should be remitted for reconsideration.
7. I am also satisfied that the Tribunal erred in concluding that all of the applicant's claims and evidence must be completely rejected as fabricated (CB 310 [41-2]). The conclusions reached by the Tribunal in that regard were not logical or rational, and were legally unreasonable.
8. In CIC15, Bromberg J said at [7] and [8]:

[7] I should first deal with one aspect of the Minister's submission to the effect that the making of credibility findings is a function of the primary decision-maker par excellence and that, accordingly, if a credibility finding is open on the materials, it ought not be disturbed on judicial review. That proposition is not entirely supported by the relevant authorities. The authorities recognise that a credibility finding may well constitute jurisdictional error. As Robertson J stated in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 ("SZRKT") at [78]:

It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim.

[8] The relevant principals were summarised by Griffiths, Perry and Bromwich JJ in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 ("ARG15") at [83] as follows:

Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:

(a) McHugh J's oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

(b) the issue whether or not a credibility finding is tainted by jurisdictional error is "a case specific inquiry" and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);

(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and

(d) without derogating from what is said above regarding the danger of relying too heavily on "fixed categories or formulas" (which includes the danger of blindly repeating McHugh J's comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

(i) failure to afford procedural fairness;

(ii) reaching a finding without a logical or probative basis;

(iii) unreasonableness; and/or

(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]- [21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].

1. His Honour also cited with approval the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] and [54]-[56]. At [56] of that decision, Wigney J warned against assertions of illogicality and irrational reasoning as an attack on the merits of the decision and should not be sanctioned (see also Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [96] per Crennan and Bell JJ).
2. In CIC15, Bromberg J found that the Tribunal's findings as to credit, regarding the same applicant as in this case, were based on minor or trivial inconsistencies and were recognised by the Tribunal as explicable by reason of the passage of time. His Honour found that the sum of the weight of the five discrepancies in the applicant's evidence did not support a finding that the applicant fabricated his story, and that finding was illogical (CIC15 at [26] and [27]).
3. In the Decision, there are several, indeed more than five, conclusions reached by the Tribunal as to the credibility of the applicant's evidence that are illogical. The Tribunal starts with the same proposition as the Tribunal in the first decision. At CB 309 at [34], the Tribunal acknowledges that events relating to L (and therefore people smuggling) are claimed to have occurred seven to eight years ago and 'it is natural that one's memory about such events would be adversely impacted'.
4. The Tribunal then concludes at CB 309 [35] that because the applicant's evidence lacked significant details, it 'is not satisfied that those events occurred'. That conclusion does not logically follow from a lack of detail, especially after the acknowledgement of a seven to eight year hiatus between the application and further hearing. No other inconsistency in the applicant's evidence or contradiction in his evidence or any other evidence before the Tribunal is identified as the basis for the finding that events did not occur, or could not have occurred as recalled by the applicant.
5. The Tribunal then expresses concern that the applicant's evidence was vague and general, 'raising some doubts about his credibility'.[1]
6. That was a conclusion that was unexplained by any aspect of the applicant's evidence identified by the Tribunal, apart from the broad observation that the evidence was vague and general. No aspect of the applicant's evidence was identified as unlikely, improbable, incredible, contradicted by other evidence or uncorroborated.
7. The Tribunal also observed that the applicant repeated his evidence that he assisted L and that he was wanted by the CID as a result. That was entirely consistent with the applicant's statutory declaration, submissions to the delegate and Tribunal and evidence given to the delegate. That the applicant repeated his evidence on oath and was consistent with previous recollections does not mean that the evidence is incredible or a fabrication. The findings at CB 309 [35] do not have a logical or rational explanation or show a chain of reasoning that leads to a rational conclusion.
8. Similarly at CB 309 [36], the Tribunal found that it was difficult to accept that if the applicant is wanted by the CID as claimed, nothing has happened to any member of his family, raising doubts about his claims. That nothing has been claimed to have happened to other family members does not lead to a logical conclusion that the claims made by the applicant are false. An inference may be drawn that the applicant's claims are unlikely or improbable, but it does not follow that the evidence is fabricated or untrue as the Tribunal concluded at CB 310 [42].
9. The Tribunal's findings about the evidence of the applicant's father are also confusing and illogical (CB 309-10 [37] and [38]). They do not support the conclusion drawn by the Tribunal that the evidence was adverse to the applicant. The finding that the applicant's father said the words 'nothing like that' in answer to a question about whether the applicant has been accused of helping L does not logically lead to the conclusion that the applicant was not wanted for, or may be involved in, people smuggling and therefore not of interest to the CID. The transcript reveals that the evidence of the applicant's father was confused and affected by his age, giving evidence remotely by telephone, with the assistance of an interpreter and that there was some general confusion about the questions asked by the presiding member. However, it is not apparent that the evidence of the father was inconsistent with the applicant's evidence to the Tribunal or contradictory. The applicant's father did not give evidence that confirmed that the applicant has not been accused of people smuggling by Sri Lankan authorities as found by the Tribunal at CB 310 [38]. The transcript shows that question was never asked by the Tribunal or answered by the father.
10. At CB 310 [40], the Tribunal finds (without explanation) that the applicant's evidence about L 'being taken by the CID' is confused and contradictory, but the Tribunal does not explain why. The Tribunal proceeds to conclude that even if that did occur, then it is no longer an issue of concern because the father has recently seen L and consequently, the applicant's claims that the applicant and L are wanted by Sri Lankan authorities are untrue or have been 'resolved'. The findings in this paragraph of the Decision are without logical foundation or articulated reasons.
11. At CB 310 [41], the Tribunal expresses 'other concerns relating to this case'. The concern is that the applicant claimed to have a girlfriend who was waiting for him in Sri Lanka 'but he has not provided any corroborative evidence'. This leads the Tribunal to conclude at CB 310 [42] that the Tribunal is not satisfied that the applicant has a girlfriend called S who is still waiting for him or that he has not returned to Sri Lanka due to his fear of harm on the basis of his involvement with L. The relevance of the finding about the applicant's alleged girlfriend is not readily apparent, other than to add to the cumulative (albeit minor or trivial) findings that the applicant's evidence was vague or unconfirmed and therefore lacked credibility. These were the same type of findings that Bromberg J found to be illogical and unreasonable in CIC15.
12. Finally, the findings regarding the applicant's ethnicity fall into the same category of illogical and irrational reasoning. In the applicant's statutory declaration made 24 October 2012 (CB 59-61) in support of the application for the visa the applicant said '...My ethnicity is Tamil and my religion is Sunni Muslim' (CB 59). In the written submissions made to the Tribunal before the first hearing (CB 125-65), his then solicitor said that the applicant was a member of the Tamil-speaking community in Sri Lanka. The applicant's evidence to the Tribunal at the first hearing was that he identified as Tamil (CB 197 at [31]). This led the Tribunal in the first decision to consider the risk of harm to Tamil-speaking Muslims in Sri Lanka as a distinct cultural group.
13. In CIC15, Bromberg J recorded that the applicant was a 'fluent Tamil speaker who is Muslim'. Judge McNab made a similar observation in his decision CIC15 v Minister for Immigration and Border Protection [2017] FCCA 2825 at [7] (CB 216-7).
14. The relevant consideration for the second Tribunal was whether the applicant, as a Tamil-speaking Muslim, had a well-founded fear of persecution or was likely to suffer significant harm because of that identity. Submissions were made to the Tribunal by the applicant's solicitor on that issue. The transcript reveals that the applicant frequently said that he was not a Tamil, but a Tamil-speaking Muslim. He acknowledged that his statutory declaration was incorrect in that regard, but explained that at the time of making the statutory declaration he was new to the country and did not understand the distinction or difference to be important. The applicant's father gave evidence that he was 'Tamil Muslim...Everything the same' (transcript page 33, lines 5-25).
15. Nevertheless, the presiding member regarded the applicant's statutory declaration and evidence at the hearing as contradictory and in a serious way. At CB 311 [44]-[47], the Tribunal considered the applicant's evidence (but not the applicant's father's evidence) and found at [47] that the applicant had made a false claim regarding his ethnicity and that 'this is further evidence of the applicant's propensity to exaggerate and be untruthful about aspects of his claims'. That finding was not readily apparent from the evidence and lacks an intelligible basis for the conclusion reached. It also indicates that this finding as to credit may have been the catalyst for other findings, that if reconsidered, may have altered the outcome of the review (see, for example, DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 at [50]- [61] per Beach J).
16. In EVI19 at [36], Stewart J said:

It is well-established that credibility findings are not immune from judicial review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]- [38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.

1. The Tribunal's findings regarding the credibility of the applicant's claims lacked the necessary clarity, articulation, and logical and probative weight required to make them legally reasonable. The error of the Tribunal was material for the same reasons articulated by Stewart J in EVI19 at [151]. It is possible that the Tribunal might not have made the same credibility findings and accepted the applicant's central narrative.
2. It is perhaps unnecessary to consider the other grounds of review but for the sake of completeness, there is also merit in the applicant's submission that the Tribunal erred in application of the real chance or real risk test (see MZYYL at [36]). The findings of the Tribunal at CB 323 [88] of the Decision are conclusionary, and do not clearly articulate a reasoned consideration of the statutory test or all of the relevant requirements of s 36(2)(aa) of the Act.
3. The Tribunal also failed to satisfy the requirements of s 424AA of the Act by using the words 'could be' as opposed to 'would be' when warning the applicant about the information to be relied upon. In MZYFH at [65], Bromberg J took a strict approach to construction of the section. Here, the Tribunal was unclear in communicating the gravity of the consequence of the information that it proposed to rely upon. The Tribunal did not say to the applicant that it 'would be relying on that information as the reason, or part of the reason, for affirming the delegate's decision'. The particularisation of the father's evidence to be relied on was also unclear because the Tribunal referred to the 'impression' drawn from the father's evidence and appears to misinterpret parts of the evidence recorded in the transcript. The applicant was not put in the position where he could clearly understand how critical it was for him to respond, and to do so convincingly. The transcript reveals that the presiding member put several confusing propositions to the applicant regarding the father's evidence and the fact that the applicant elected to respond reflects more that he was confused rather than understood the gravity of the information that the Tribunal considered adverse to the review. Section 424AA, and in particular 422AA(2)(b), requires strict adherence to ensure fairness. By concluding with the question 'Did you understand?' (transcript page 34, line 46), the Tribunal added to the confusion and this resulted in the answer from the applicant at page 35 line one of the transcript that the applicant did understand that his father's evidence was that he was a Tamil-speaking Muslim. It did not confirm that the applicant understood the gravity of the information that the Tribunal would rely on. This was confusing and unfair to the applicant.

1. The final orders sought in the amended application for judicial review will be made. The Decision is quashed and a writ of mandamus will be issued directed to the second respondent, requiring it to determine the applicant's application for review of the delegate's decision in accordance with law.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title that changed on 13 May 2025. The name of the second respondent is also amended to Administrative Review Tribunal.

1. I will hear the parties on appropriate orders as to costs of the proceeding.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] In CSU16 v Minister for Immigration and Border Protection [2022] FCA 1509 at [30], Bromberg J said that such a comment should be interpreted as a statement by the Tribunal about the applicant's credibility generally, and that '...Properly understood, what the Tribunal there revealed was not its view about the reliability of the appellant in relation to one relatively insignificant event, but rather its view about the reliability of the appellant's honesty generally, given his preparedness to deliberately reconstruct an event and insist upon it as truth'.