CVK18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 693

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

1. The applicant is a citizen of Sri Lanka, who applied for a protection visa on 18 October 2016.
2. On 1 September 2017, the Delegate refused the application. The decision was referred to the IAA for review.
3. On 8 May 2018, the IAA affirmed the Delegate's decision.

1. The IAA observed that it had received a submission, a letter dated 22 September 2017 and five media articles. The IAA observed that the submission made a new claim regarding actions taken by the Criminal Investigation Department (CID) and the Sri Lankan Army (SLA) and that the letter dated 22 September 2017 supported this claim. The IAA accepted that s 473DD of the Migration Act 1958 (Cth) (Act) was met in relation to the new claim and letter (at [5]).
2. The IAA did not accept that the requirements of s 473DD of the Act were met in relation to the media articles (at [6]-[7]). As the IAA's findings in this regard are the subject of challenge, they will be considered further below.
3. The IAA accepted that:

(a) the applicant was a Hindu Tamil from the northern province of Sri Lanka ([11]-[12]);

(b) the applicant lived in a village controlled by the Liberation Tigers of Tamil Eelam (LTTE) and civilians commonly had to interact with the LTTE's military ([12]);

(c) the applicant's brother was taken by the LTTE and subsequently disappeared ([12]);

(d) the applicant, whilst living in a camp in an SLA controlled area, was questioned from time to time about his own and others' association with the LTTE (at [14]);

(e) upon return to his home area, the applicant's family were subjected to monitoring and house searches by the CID and the SLA, and were questioned about the brother who was taken by the LTTE (at [15]);

(f) in 2012, an army officer committed suicide and the SLA detained people on suspicion of being involved, with the atmosphere of threat prompting the applicant's parents to send him and his brother to Australia for their safety (at [16]); and

(g) on one or two occasions the authorities attended the applicant's family home and asked about the applicant and his brother's whereabouts (at [23]).

(a) the applicant had made a prior attempt to depart Sri Lanka by boat, following which he was caught and detained at the CID's 4th floor prison for approximately 2 to 3 months (at [17] and [22]); or that

(b) the authorities visited the applicant's parents in 2017, asking after him and his brother and making threats (at [23]).

1. The IAA found that the applicant was not a person of interest to the authorities at the time of his departure from Sri Lanka. Having also considered country information at [26]-[29] of its decision, the IAA found that harassment and monitoring in Sri Lanka had greatly reduced and that, even if the applicant again experienced such treatment, it was not satisfied that it would amount to serious harm. The IAA concluded that the applicant was not at risk of harm on the basis of his ethnicity as a young Tamil male from a former LTTE-held area, his family connections, his imputed political opinion, detention in an IDP camp, previous questioning by the authorities, or for any other reason if he returned to Sri Lanka (at [30]).
2. The IAA accepted that the applicant would be perceived as a returning asylum seeker from Australia who departed Sri Lanka illegally. The IAA accepted that the applicant may be questioned and charged on account of his illegal departure, which may result in him being detained for a limited period as well as a fine. However, the IAA did not accept that the applicant would face a real chance of serious or significant harm on this basis. Further, the IAA found that the processes involved would be pursuant to a non-discriminatory law of general application (at [31]-[42]).
3. On the basis of the above, the IAA was not satisfied that ss 36(2)(a) or 36(2)(aa) of the Act had been met. The IAA accordingly affirmed the Delegate's decision (at [39]-[45]).

1. On 31 May 2018, the applicant applied for judicial review of the IAA's decision. The matter remained in the central migration docket for some time and was previously docketed to another judge before being docketed to me and listed for hearing. The applicant ultimately relied upon a further amended application filed with submissions on 20 February 2025 containing the following grounds:

The second respondent (the IAA) fell into jurisdictional error by misinterpreting and misapplying s 473DD of the Migration Act 1958, when determining whether it could consider new information provided to the IAA by the applicant. The IAA did not evaluate the significance of TamilNet articles information between the interview and the delegate's decision which bespoke an inappropriately narrow understanding of the reach of the term "exceptional circumstances". The IAA's decision that there were not exceptional circumstances to consider the TamilNet article information provided by the applicant was legally unreasonable in the circumstances of this case.

Particulars

1. On 27 September 2017, the applicant provided the IAA with five TamilNet news articles to corroborate his claim that young Tamil men were being forced to join the army and faced kidnapping if they refused.
2. The articles, including "SL Military 'punished' families opposing forced conscription of Tamil Woman" (01 April 2014) and "Occupying Colombo Seeks 450 Tamil deserters enlisted by SL military in North" (21 December 2015), were published before the delegate's decision and were directly relevant to the applicant's protection claims.
3. The IAA concluded at paragraph 6 that the articles did not constitute exceptional circumstances because they were not provided before the delegate's decision, despite acknowledging that the applicant made this claim in his 2016 statement.
4. The IAA rejected the new information, concluding that the articles' corroborative value was outweighed by material problems with the evidence and that no exceptional circumstances justified their consideration.

Ground 4

(a) Ongoing adverse interest claim: The applicant claimed that since he fled Sri Lanka the army and CID have attended his family home and asked about the whereabouts of him and his brother [redacted] (CB154.9). At the phone hearing through an interpreter the applicant diversely stated that CID and Army searching him continuously. A corroborative letter by a provincial council member submitted to the IAA stating that most recent visit was in September 2017(CB 233).

At the end of paragraph 23 IAA concluded that "Further, on my findings, the applicant has never personally had a profile with the authorities and on his return to their village in 2010, notwithstanding the knowledge of the authorities of R's involvement with the LTTE and some questioning about him, experienced no increased level of interest from the authorities beyond the questioning, general harassment and monitoring to which I accept he and his family were subject. Given these monitoring activities and the general high level of awareness maintained by the authorities of the Tamil population in their areas, I am willing to accept that one or two occasions the authorities attended at his family home and asked about his and A's whereabouts. However, to the extent the letter provides some level of corroboration for the applicant's claims to be a person of ongoing adverse interest to the authorities, it does not, in my view, overcome my other concerns about his evidence and I am not satisfied that the authorities visited his parents in September 2017 asking after him and his brother and making threats".

The IAA fell into jurisdictional error in rejecting this claim. In particular, the IAA, in its findings at [23] misunderstood the claim, overlooked or failed to have regard to most of the applicant's evidence concerning the claim and/or did not give proper and genuine consideration to most of the applicant's evidence concerning the claim

(b) CID's Fourth Floor detention claim: The applicant claimed that he was taken to the fourth floor and detained 2-3 months (CB153 and 154 paragraph 9: page 11-13 of transcript; and CB229).

The IAA at [17]-[22] did not accept that the applicant attempted to leave Sri Lanka first in [redacted], was caught, imprisoned fourth floor 2 to 3 months and was released either after paying a bribe or because his parents begged his release. The IAA overlooked to consider the brother's statement given the same time [CB70-9]

The IAA fell into jurisdictional error in rejecting this claim. In particular, the IAA, in its findings at [23] misunderstood the claim, overlooked or failed to have regard to most of the applicant's evidence concerning the claim and/or did not give proper and genuine consideration to most of the applicant's evidence concerning the claim

1. Ground 3 contended that the IAA misinterpreted or misapplied s 473DD of the Act. The stated ground suggested that this was because it did not "evaluate the significance of TamilNet articles", adopted a "narrow understanding" of "exceptional circumstances" and/or reasoned in a manner that was legally unreasonable.
2. Section 473DD of the Act provided:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. The IAA's reasoning in relation to the articles, set out at [6]-[7] of its decision, was as follows:
   1. Included with the submission of 27 September 2017 were five media articles sourced from TamilNet. None of the TamilNet articles was before the delegate and are new information. Four of the articles predate the delegate's decision and deal with the forced conscription of Tamil women (1 April 2014), the search by the Sri Lankan authorities for Tamil deserters from the army (21 December 2015), assaults on two Tamil soldiers (26 August 2017) and Tamil girls enslaved as child soldiers in the Sri Lankan military (19 January 2016). While the applicant has not explained how these articles are relevant to his claims, it appears they may have been provided in support of his claim that young Tamil men are being forced to join the Army and if they refuse, they are kidnapped and killed. The applicant made this claim in his 2016 statement and notwithstanding the articles pre-date the delegate's decision, did not provide the articles before the date of the delegate's decision although he was informed by the delegate that any information submitted up to that time, could be taken into consideration. A period of nearly three months elapsed between his SHEV interview and the delegate's decision during which I consider he had a more than adequate opportunity to locate what appear to be publicly available documents and provide them to the delegate. Furthermore, I have a number of reservations about the TamilNet articles. Apart from the fact that they do not support the applicant's claim that young Tamil men are kidnapped and killed if they refuse moves to forcibly recruit them to the Sri Lankan army, they repeatedly refer to the enslavement and exploitation of Tamils under the "genocidal" Sri Lankan state and use what I consider inflammatory and partisan language in their reportage and for that reason I do not consider them reliable or independent. Further, none of the most recent UK Home Office, US Department of State, or Department of Foreign Affairs and Trade (DFAT) reports which were before the delegate refer to the forced recruitment of Tamils or their kidnapping and killing in cases of refusal nor is there any mention of such activities in the report of the UN's Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL) report which I consider a credible, reliable source. In its comprehensive 2015 report when discussing the numerous atrocities perpetrated on the Tamil people by all sides both during and after the war including the forced recruitment of Tamils, men and women, by the LTTE, there is no reference to the forced recruitment of young Tamil men by the Sri Lankan state and their being kidnapped and killed in case of refusal. I accept that the articles have been provided to corroborate his claims to fear forced recruitment by the state. However, their corroborative value does not outweigh what I consider to be the very material problems with this evidence. Taking all of these factors into consideration, I am not satisfied there are exceptional circumstances to justify considering them.
   2. The other TamilNet article is dated 7 September 2017. This article was not before the delegate and is new information. Given its publication date, I accept that it could not have been provided to the delegate before she made her decision. In considering whether exceptional circumstances exist to justify considering this new information, other information about political prisoners and how the Sri Lankan state is dealing with them was before the delegate and the article provided is not significantly different from country information from a number of credible sources which similarly discuss these issues and which were also considered by the delegate. I am not satisfied that exceptional circumstances exist to justify considering the new information.
2. The IAA evaluated the significance of the articles, at least to some extent, in considering their "corroborative value" against the problems that it identified. This evaluation appears to have been directed towards evaluating whether there were "exceptional circumstances" for the purposes of s 473DD(a) of the Act. Even if the IAA had erred in construing "exceptional circumstances", it is unclear how such an error could have been material if no error were found in relation to the IAA's assessment under s 473DD(b): see AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17) at [11]. In AUS17, it was stated at [10]-[11] per Kiefel CJ, Gageler J (as his Honour was), Keane and Gordon JJ (footnotes omitted):
   1. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
   2. Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
3. After some discussion at hearing, the applicant clarified that he was contending under ground 3 that the approach taken by the IAA was unreasonable because it misapplied s 473DD of the Act by not assessing the information in the media articles under s 473DD(b)(ii). The applicant confirmed that he did not press any further basis for finding legal unreasonableness or error under ground 3.
4. I accept that the IAA did not expressly consider s 473DD(b)(ii) in assessing whether the articles met the requirements for consideration under s 473DD. I accept that it is therefore arguable that the IAA misapplied s 473DD in the manner considered in cases such as AUS17.
5. However, on balance, I accept the Minister's submission that there is insufficient basis in the present case for finding that the IAA misconstrued or misapplied s 473DD. A more likely inference is that the IAA simply referred in its reasons to the criteria in s 473DD(b) insofar as it considered that those factors were relevant and material to its assessment: see APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [83]- [85] (Markovic J).
6. It is not apparent how the content of most of the articles could have been found to have contained "personal information", as required by s 473DD(b)(ii) of the Act. In BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401, Kenny J considered:
   1. The appellant's argument at this point focussed on subparagraph (b)(ii), which, amongst other things, required the appellant as the referred applicant to satisfy the IAA that the "new information" he sought to provide was credible "personal information". The expression "personal information" for the purposes of the Migration Act has the same meaning as in the Privacy Act 1988 (Cth): see _Migration Ac_t, s 5(1). Section 6 of the Privacy Act defines "personal information" as "information or an opinion about an identified individual, or an individual who is reasonably identifiable" (irrespective of whether the information or opinion is true and recorded in a material form).
   2. In order to rely on s 473DD(b)(ii), the appellant had to satisfy the IAA that he sought to provide "new information" within the meaning of s 473DC and, amongst other things, that that information was "personal information" for the purposes of s 473DD(b)(ii).
   3. It may be accepted that information about conditions in a specific country (usually called "country information") may include information about an identified or reasonably identifiable individual. Country information may therefore include "personal information" for the purposes of the Migration Act. It does not follow from this, however, that such information (being the particular information about an identified or reasonably identifiable individual) is relevantly "new information" for the purposes of Div 3 of Pt 7AA of the Migration Act. This is because "new information" for the purposes of Div 3 of Pt 7AA is not just information that was not before the Minister or his delegate when the IAA reviewable decision was made, it is also information that the IAA considers potentially relevant to the outcome of its review: see s 473DC(1); Plaintiff M174 at [24].
7. In the present case, some of the articles referenced identifiable people in their content. However, it is not apparent how the relevance of this extended beyond the prevailing conditions in the country at the time. Having regard to what was said in BDF17, I accept the Minister's submission that the most likely inference is that the IAA was discussing what it found to be material, which was its assessment of s 473DD(b)(i). This was in circumstances where it was not apparent how the material in question could have been construed both as "new information" and "personal information" capable of meeting s 473DD(b)(ii).
8. Even if the IAA made some error in this regard, as in BDF17, the applicant has not demonstrated that any such error was material. It is not apparent how the limited personal information included in the articles could have affected the outcome of the review, when divorced from the information about the conditions in the country more generally. Although the applicant contended that the broader country information was relevant to and may have affected consideration of his claims, it would first have had to have passed through the thresholds contained in s 473DD of the Act. Having regard to the IAA's reasoning, the reasoning in BDF17 and the nature of the information in question, it is not apparent how it could realistically have done so.
9. I am therefore not persuaded that jurisdictional error has been demonstrated under ground 3.

1. Ground 4, as stated, was broadly expressed. In relation to a claimed visit to his parents from the authorities in 2017, the applicant suggested that the IAA "misunderstood the claim, overlooked or failed to have regard to most of the applicant's evidence concerning the claim and/or did not give proper and genuine consideration to most of the applicant's evidence concerning the claim". In relation to the applicant's claim to have been detained on the 4th floor, he similarly contended that the IAA "misunderstood the claim, overlooked or failed to have regard to most of the applicant's evidence concerning the claim and/or did not give proper and genuine consideration to most of the applicant's evidence concerning the claim".
2. At hearing, the applicant narrowed the ground to a complaint that the following evidence was not considered by the IAA:

(a) the applicant's brother's evidence in a statement dated 6 November 2013 correcting his record of Entry Interview by stating that he had not been detained on the 4th floor by the CID for 4 months (CB 70);

(b) evidence given by the applicant at interview regarding a claimed visit from the CID in 2017 (p 17 of the transcript that is in evidence); and

(c) a letter provided by the applicant to the IAA, said to be from a member of the Northern Provincial Council, stating that unidentified persons had most recently visited the applicant's family making threats regarding the applicant in September 2017 (CB 233).

1. The applicant confirmed that to the extent that his written submissions and ground were suggestive of some broader or additional error, they were not pressed.

1. I am not persuaded that the IAA failed to consider the evidence in the brother's statement. The IAA was not obliged to refer to every aspect of the evidence that was before it. A more likely inference is that the IAA did not consider that this particular part of the evidence materially affected the findings that it made on the review.
2. At hearing, the applicant hypothesised that he may have raised the 4th floor claim in his Entry Interview and that his evidence may have been mistakenly included in his brother's record of interview. This was contended to enhance the significance of the brother's correction in his statement, warranting an inference being drawn that the evidence was not considered and a finding that the IAA therefore fell into the species of error considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT).
3. The applicant suggested that the evidence before the Court revealed that the applicant and his brother were interviewed at the same time. However, the applicant was unable to direct the Court to evidence that the applicant was present when his brother was interviewed. I accept that the evidence demonstrates that the brother was present when the applicant's Entry Interview was conducted.
4. The difficulty with attributing the contended significance to the brother's evidence is that this was not the significance attributed to it by the applicant in the material that was before the IAA. In his 2016 statement raising the claim regarding 4th floor detention, the applicant suggested that he believed that he had previously "mentioned" it to persons interviewing him, although acknowledged that it was possible that he "forgot to mention this fact". At the subsequent interview, the applicant was given the opportunity to explain why he had not claimed in the Entry Interview that he had been detained on the 4th floor by the CID. The applicant did not suggest, in response, that his evidence may have been mistaken for the evidence of his brother. Instead, the applicant gave explanations that included:

(a) the interviewer had "only asked a few questions", whilst his brother was beside him, and he had been told that he could give further information later;

(b) he was new to the country and "did not know at the time what to say";

(c) he was happy in Australia and "didn't want to think about those things" and therefore "did not say all these things";

(d) he "forgot all these things" and had been affected by depression; and

(e) he was young, without much knowledge, and assisted by an interpreter during the Entry Interview (pages 6-7, 13 and 16 of the transcript).

1. In submissions provided to the IAA, the applicant claimed that he was not "mature enough" when he arrived in Australia to respond to the questions and had feared that he could be deported "at any minute" (CB 229).
2. The IAA did not accept these explanations, for reasons it gave at [17]-[22] of its decision. The logic of this non-acceptance is not the subject of challenge under any ground; rather the applicant contends that part of his brother's statement was not considered.
3. Within the above context, I am not persuaded that the IAA was obliged to have attributed to the brother's statement a significance that had not been attributed to it by the applicant when given the opportunity to explain what had happened. It follows that I accept the Minister's submission that there is insufficient basis for drawing an inference that it was not considered, or that the IAA fell into the species of error considered in cases such as SZRKT in relation to this evidence.

Evidence at interview regarding 2017 CID visit and the Northern Provincial Council letter

1. At hearing, the applicant directed attention to page 17 of the transcript. There, the applicant claimed that the police and CID had in 2017 visited his family asking about him and saying that they will "get [him]" if he returns to Sri Lanka. The applicant also directed attention to the letter said to be from a member of the Northern Provincial Council. The letter claimed that unidentified persons had searched for and made inquiries regarding the applicant as recently as in September 2017, warning that they would arrest him if he were found in the country.
2. The applicant submitted that the IAA's reasoning at [23] did not adequately grapple with this evidence. At [23], the IAA considered:
   1. The applicant's claims regarding visits to his parents and enquiries about him have evolved over the course of the protection process. In his 2013 statement he said the CID went to his parent's house and enquired of his whereabouts. In his 2016 statement he said the SLA and the CID have attended his home and asked about his and his brother, A's, whereabouts. In his SHEV interview, he said that in 2017 the CID, police, GS, and other "big people" came to his home with guns and handcuffs asking about him and his brother and warned his parents that when he returned, they would catch him; it's because his family has many boys and one of his brothers is missing, that the authorities come more often. The applicant provided a letter dated 22 September 2017 from [a] Member of the Provincial Council of the Northern Province in support of this claim stating that unidentified people came to his father, threatened him with handing over the applicant when he comes back, and stating they will arrest him wherever he is found; it says the most recent visit was in September 2017. However, I have some reservations about this letter. It states that the applicant's father and family is well-known to him. However, the letter is vague in its terms. In particular it does not bear out the applicant's claims as to who came to the house and does not give a specific date for when the September 2017 visit occurred. Given the letter was prepared in September, the omission of an accurate date for this recent visit is a significant anomaly. Additionally, I do not consider the timing of this claimed visit coincidental, given the date of the delegate's decision, ie, 1 September 2017 and for these reasons, reduce the weight I am willing to give the letter. Further, on my findings, the applicant has never personally had a profile with the authorities and on his return to their village in 2010, notwithstanding the knowledge of the authorities of R's involvement with the LTTE and some questioning about him, experienced no increased level of interest from the authorities beyond the questioning, general harassment and monitoring to which I accept he and his family were subject. Given these monitoring activities and the general high level of awareness maintained by the authorities of the Tamil population in their areas, I am willing to accept that on or two occasions the authorities attended at his family home and asked about his and A's whereabouts. However, to the extent the letter provides some level of corroboration for the applicant's claims to be a person of ongoing adverse interest to the authorities, it does not, in my view, overcome my other concerns about his evidence and I am not satisfied that the authorities visited his parents in September 2017 asking after him and his brother and making threats.
3. At hearing, the applicant took issue with the IAA's characterisation of the claimed encounter in 2017 as a "visit" or as attendance. The applicant submitted that his evidence had been that they had not only asked about his whereabouts, but that their purpose was to "catch him" and arrest him.
4. However, the contended purpose of the visit appears to have been appreciated by the IAA. At [23], the IAA expressly referred to the applicant's evidence that the visitors had threatened to "catch him" and "arrest him". The IAA set out in some detail the applicant's claims regarding what had happened in 2017, as well as the Northern Provincial Council letter that had been provided in support of them.
5. The IAA engaged intellectually with this material at [23]. The IAA raised concerns regarding the letter, including its timing and what was found to have been the vagueness of its content. The IAA was not convinced, having regard to its reasoning at [11]-[22], that the applicant's profile was such that it would have attracted the level of interest claimed. Accordingly, whilst the IAA was willing to accept that the authorities had attended the applicant's family home on one or two occasions and asked about the applicant and his brother (given general monitoring activities in the area), the IAA was not otherwise prepared to accept the applicant's claims regarding ongoing interest from the authorities. In particular, the IAA did not accept that the authorities visited the applicant's parents in September 2017, asking after him and his brother and making threats.
6. It has not been demonstrated that this reasoning was relevantly closed to the IAA. I am not persuaded it has been demonstrated that the IAA, in so reasoning, failed to consider the applicant's evidence regarding the 2017 visit.
7. I am therefore not persuaded that jurisdictional error has been demonstrated under ground 4.

1. For the above reasons, the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.