CSD17 v Minister for Immigration and Citizenship [2025] FCA 935

Federal Court of Australia|2025-08-11|Before: Thawley J

For the reasons given next, it is not necessary to decide whether it was legally unreasonable to reach the conclusion which the Authority did concerning [45(d)].
The Authority misunderstood the appellant's claims and evidence in material and important ways such that it did not carry out a review of the kind contemplated by Pt 7AA of the Migration Act 1958 (Cth) - see: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at . The appellant had articulated a claim that his family were known as (ie, considered to be) supporters of the LTTE (as was recognised in the fourth bullet point of the summary of claims at A[7]) and that the family was suspected of links to, and associations with, the LTTE, including (but not only) because of the actual involvement of one of his uncles with the LTTE. Contrary to the Authority's conclusion at A[22], there was a substantial body of material which supported the appellant's claim that the appellant and members of his family were targeted by reason of the family's perceived association with the LTTE arising (at least in part) because of the actual involvement with the LTTE on the part of the uncle who disappeared in 1998. The claim at [45(d)] - that two other deceased relatives were of involvement with the LTTE - was not considered to form a part of the appellant's claims, despite the evident similarities, and the consistency of the account, with the appellant's earlier accounts and claims.

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

The appellant appeals from orders of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Immigration Assessment Authority: CSD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1416. The appellant was not legally represented before the Federal Circuit Court.
The appellant relies on three grounds of appeal, set out in an Amended Notice of Appeal filed on 2 October 2023. These raise contentions of jurisdictional error on the part of the Authority which were not raised before, and were not considered by, the Federal Circuit Court. The respondent does not object to the appellant's reliance on the Amended Notice of Appeal.

Ultimately, the hearing on 27 March 2025 was adjourned for further hearing. A transcript and audio recording were tendered at the resumed hearing of the appeal on 8 August 2025. The transcript contains some inaccuracies (usually by way of omission) compared to the audio recording, including at the part of the interview where questions were asked concerning [45(d)]. The Authority only had the audio recording before it.
Two matters of context should be mentioned. First, the interview participants were, at the relevant time, attempting to ensure that the interview could finish within time for the appellant's lawyer to attend a second interview at 1.15 pm: T32.34-8, 38.40-39.9. This resulted, for example, in the interviewing delegate affording the appellant an opportunity to say anything else he might wish in relation to his activities with the TNA in terms: "Just give me a snapshot in like 30 seconds to one minute, just an overview?": at T39.17-8.
Secondly, during that part of the interview in which [45(d)] was raised (from T40.44), the interviewing delegate was putting to the appellant various differences which the interviewing delegate perceived to exist between the various accounts of the relevant events which the appellant had given. The interviewing delegate evidently considered that [45(d)] (second appearing) might be understood as containing differences to earlier accounts which had been given. In particular, it would seem that the interviewing delegate was considering whether [45(d)] - if it was speaking about the appellant's circumstances and claims - was the only time that the appellant had expressly asserted that: (a) his uncle, who was shot in 1987 whilst fishing, was suspected of having connections with the LTTE; and (b) his grandmother who, was shot in 1990, was suspected of providing assistance to the LTTE.
It is not clear that the account in [45(d)] (second appearing) was substantially different from the appellant's claims and evidence. The process by which visa applicants provide accounts on numerous occasions when they are in materially different personal circumstances, and the care which is needed in examining whether there are differences of significance, was referred to in AGC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1572 at [41]-[45], [51]. In any event, there is no real doubt that the interviewing delegate was intending to explore the possibility that there were differences between [45(d)] and earlier accounts.
Having listened to the audio recording, it appears likely that the appellant's lawyer was referring to the correct [45(d)] when stating that it was not directly related to the appellant's claims. His response - to the effect that the paragraph did not relate directly to the appellant - is impossible to reconcile with the terms of [45(d)]. Nevertheless, although not entirely clear, that appears to be the effect of what he stated. Accordingly, the interviewing delegate and the appellant's lawyer were referring to the same [45(d)] at the critical time.
At A[24], the Authority stated that it was not satisfied that what was stated in [45(d)] (second appearing) formed a part of the appellant's claims because of the comments which had been made by the lawyer and on the basis that:

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