CXB18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1341

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA). 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 Sri Lankan national who arrived in Australia as an unauthorised maritime arrival some years ago. On 5 October 2016, the applicant applied for a protection visa.
2. On 24 July 2017, the Delegate refused the application. The matter was then referred to the IAA for review of the Delegate's decision.
3. On 11 May 2018, the IAA affirmed the Delegate's decision.

1. The IAA observed that it had received new information that had been provided after the Delegate's decision. That information was assessed against the criteria for consideration under s 473DD of the Migration Act 1958 (Cth) (Act). The IAA found that those criteria were not met in relation to certain country information that had been provided (at [4]-[7]).
2. The IAA accepted that:

(a) the applicant supervised the catering section in the Central Administrative Office of the Liberation Tigers of Tamil Eelam (LTTE) from approximately 2001 to 2007 and received self-defence training around 2006 (at [14]);

(b) the applicant, motivated by concerns that he would be forced to fight with the LTTE, left in his father's lorry for Colombo with the intention of leaving Sri Lanka (at [16]);

(c) the applicant was detained by the Sri Lankan Army (SLA), taken to a camp and was tortured, interrogated and held for 7 or 8 days during which his fingerprints and photograph were taken (at [17] and [20]);

(d) the applicant's father's payment of money and alcohol contributed to the applicant's ability to pass subsequently through checkpoints when travelling to Colombo with his father (at [20]); and

(e) certain details were disclosed regarding the applicant as a result of a data breach in 2014 that may have been accessed by the Sri Lankan authorities (at [45]-[49]).

(a) the applicant coordinated street plays for the LTTE between 2001 and 2007, or that an officer who had interrogated the applicant had been involved in such a play when captured (at [32]);

(b) the Criminal Investigation Department inquired about the applicant at his home in 2014, with the intention of arresting him (at [37]); or

(c) the 2014 data breach gave rise to a real chance of the applicant facing serious or significant harm (at [50]).

1. Although the IAA accepted that the applicant's past treatment in detention constituted serious harm, it observed that he was released without charge at a time when large numbers of Tamils were arrested. The IAA considered that this indicated that the applicant was not regarded as a member of the LTTE, but rather as someone employed to supervise catering in an LTTE controlled area during ceasefire. The applicant's release was considered to indicate that he was not seriously suspected of LTTE involvement or advocating for a separate state. The IAA considered that this was also supported by the applicant's ability to obtain genuine passports and depart and return to Sri Lanka without being detained, questioned or arrested. The IAA concluded that the chance of the applicant facing relevant harm in this regard was remote (at [22]-[31]).
2. Considering country information regarding developments in Sri Lanka, as well as the applicant's profile and circumstances, the IAA considered that the applicant's fears of persecution because of his Tamil ethnicity and imputed political opinion were not well-founded (at [39]-[44]).
3. The IAA found that the chance of the applicant facing harm because he converted to Christianity and may wish to continue to worship as a Christian in Sri Lanka was "very remote" (at [58]). The IAA also found that the chance of the applicant facing harm on account of people in his village believing he recruited a young woman for the LTTE to be "very remote" (at [64]).
4. The IAA considered that the applicant had departed Sri Lanka lawfully, although found that he may be interviewed on return to Sri Lanka on account of his use of a temporary travel document. The IAA found that the applicant would not be detained for a lengthy period of time or subjected to serious or significant harm on account of this. The IAA was not satisfied that the applicant would face a real chance of relevant harm because he was returning from Australia as a failed asylum seeker (at [65]-[70]).
5. The IAA concluded that the applicant was unable to meet the criteria for the protection visa under either ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the IAA affirmed the Delegate's decision (at [71]-[81]).

1. The applicant sought judicial review of the IAA's decision through an application filed on 5 June 2018. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The applicant ultimately relied upon an amended application filed with submissions on 7 May 2025, containing the following grounds:

Ground 1

The Immigration Assessment Authority (Authority) committed jurisdictional error by being unreasonable in the manner it proceeded to make its decision.

PARTICULARS

(a) At paragraph 25, the Authority accepted the Applicant's claim that his father had paid money to an agent who organised his travel to [redacted] in [redacted] and helped him pass through airport security. However the Authority reasoned that "that it does not necessarily follow that if the agent had not been paid to organise this the Applicant would not have been able to depart Sri Lanka".

(b) The Authority found in paragraph 24 that the Applicant was issued with a genuine passport on two separate occasions and a temporary travel document and was able to depart Sri Lanka legally in [redacted], return to Sri Lanka without difficulty in [redacted], departed Sri Lanka legally again fifteen days later and fly to [redacted] without being questioned, detained or arrested. The findings that the Applicant was issued with a genuine passport on two occasions, departed Sri Lanka legally in [redacted] and depart Sri Lanka legally in [redacted] were not available on the evidence.

(c) At Paragraph 27, the Authority accepted that the Applicant had placed $100 in his travel documents (as a bribe) in order to safely pass through airport security [during the second departure]. However, the Authority again reasoned that this did not "necessarily indicate that without the payment of the money the Applicant would have been detained, questioned or harmed by Sri Lankan authorities".

(d) At paragraph 31, The Authority noted that the Applicant was asked about why he would continue to face harm if nothing happened to him in [redacted] and [redacted]. The Applicant responded that "nothing happened to him previously because he was assisted by an agent and also he paid money to avoid problems".

(e) At paragraph 36, the Authority noted that the Applicant has departed Sri Lanka legally on two separate occasions and returned legally in [redacted]. Again, those findings were not available on the evidence

(f) If the Applicant were to return to Sri Lanka now, he would do so as a failed asylum seeker who illegally departed Sri Lanka and would not have funds to bribe border security personnel.

(g) Given that the circumstances of the Applicant's arrival would be substantially different, it is erroneous for the Authority to rely on inferences rooted in the previous occasions.

PROPOSED NEW GROUND 2

The Authority erred in failing to consider an integer of the Applicant's claim that was apparent from the evidence.

PARTICULARS

(a) The Applicant claimed that his brother (C) (CB 6) was living in [an overseas country];

(b) The Applicant claimed that S had been a member of the LTTE (CB 9)

(c) The delegate (CB 158) referred to the prevailing risk to applicants who had a family connection with former LTTE sympathisers, members and fighters;

(d) The Authority did not deal with the Applicant's family connection with his brother S.

1. Specifics regarding the applicant's travel history have been redacted in the above, lest they provide a means of identifying the applicant.

1. Ground 1 took issue with the IAA's reasoning at [24]-[27] of its decision, which was as follows:
   1. I have had also regard to the fact that the Applicant was issued with a genuine passport on two separate occasions and a temporary travel document and was able to depart Sri Lanka legally in [redacted], return to Sri Lanka without difficulty in [redacted], depart Sri Lanka legally again [redacted] later and fly to [redacted] without being questioned, detained or arrested. I find that these facts support the finding that the Applicant is not regarded as a member or supporter of the LTTE or an advocate for Tamil separatism or a threat to the Sri Lankan government.
   2. I have considered the Applicant's evidence at the SHEV interview that his father paid money to an agent who organised his travel [redacted]; and that this agent helped him pass through everything at the airport and came with the Applicant up to the boarding gate. I accept that this may have occurred as claimed. However it does not necessarily follow that if the agent had not been paid to organise this the Applicant would not have been able to depart Sri Lanka and would have been detained and questioned. I do not accept that the payment of an agent to assist the Applicant to depart Sri Lanka in this way was the sole reason that the Applicant was not detained at the airport. I am satisfied that the Applicant was not of adverse interest to the Sri Lankan authorities at the time of his departure in [redacted] and for this reason was able to depart legally and was not apprehended or questioned.
   3. I note that the Applicant made a decision to return to Sri Lanka [redacted]. I have considered his stated reasons for doing this - that in [redacted] he had to work in slave-like conditions; life was very hard there and the police always stopped them and asked them for money. However in my view it is reasonable to assume that if the Applicant held a genuine fear of serious harm in Sri Lanka he would have explored alternative possibilities and returning to Sri Lanka would have been a last resort. However at the SHEV interview the Applicant stated that he did not investigate alternative options. He clarified that he did not seek assistance from the United Nations High Commissioner for Refugees [redacted], even though he claims that he was registered with the UNHCR and had been interviewed by them previously; nor did he go to the Embassies of overseas countries in which his family members were living - [redacted] - to ask to be reunited with them. I find that the Applicant's willingness to return to Sri Lanka, notwithstanding the difficult circumstances he faced in [redacted], undermines his claim to fear serious harm in Sri Lanka.
   4. At the SHEV interview the Applicant was asked if he had any difficulty returning to Sri Lanka in [redacted]. He responded that he put $100 in his travel document and passed through the airport checks without incident. In my assessment the payment of money in this way does not necessarily indicate that without the payment of money the Applicant would have been detained, questioned, arrested or harmed by Sri Lankan authorities at the airport. I do not accept that it is only through the payment of money that the Applicant was able to return to Sri Lanka and not be questioned or detained there. I find that the Applicant was not of adverse interest to the Sri Lankan authorities at this time and was thus able to pass through immigration and security checks without being questioned or detained or arrested.
2. The applicant submitted that it was not open to the IAA to have found at [36] that he had been able to depart Sri Lanka legally on the two occasions found. The applicant submitted that his evidence was that his two passports had been arranged by agents. He submitted that there was no evidence that the passports were genuine. The applicant submitted that his evidence was also that he had avoided official exit procedures and paid an agent to bribe officials. This, it was submitted, was "the antithesis of legal". The applicant submitted that it was "impermissible conjecture and hypothesis" for the IAA to have considered that, absent the bribery, the applicant would have been able to leave and return. The IAA's conclusions were submitted to have been unsupported by logical, probative evidence.
3. I am not persuaded that it was closed to the IAA to have inferred that the applicant departed Sri Lanka lawfully using passports. In his visa application, the applicant had stated that he had left Sri Lanka legally on a Sri Lankan passport (CB 59). The applicant did not subsequently claim that his passports had been other than lawfully issued. At most, the applicant claimed that he was "unsure whether these passports were legal or not" (CB 82 [9]). In circumstances where the passports had proven effective, and in the absence of a claim that they were not genuine, I am not persuaded that it was closed to the IAA to have inferred that they provided a lawful mechanism of travel.
4. I accept that the applicant had claimed that his father paid money to an agent to organise travel during one of his departures. I accept that the applicant had claimed that his sister had paid an agent to arrange a subsequent flight and that the agent was said to have bribed the authorities (CB 85). The applicant had claimed that during one journey, an agent had helped him to pass through the airport and avoid "official exit procedures" (CB 151). He had claimed that on a return trip to Sri Lanka, he had placed $100 in his travel document when passing through airport checks (CB 254 [27]).
5. I do not accept that the applicant has demonstrated, by reference to evidence, that the payment of bribes meant that his departure was illegal under Sri Lankan law. It may have been; however, this has not been established on the evidence. Nor has it been demonstrated what consequences would relevantly flow from this, in relation to the IAA's reasoning. This in circumstances where the IAA was assessing whether the applicant was relevantly at risk on account of his departure(s) from Sri Lanka, which the IAA considered to have been (at least ostensibly) not in breach of Sri Lanka's immigration laws.
6. I accept the Minister's submission that it was open to the IAA to have considered that the applicant's ability to depart and enter Sri Lanka without issues indicated a lack of adverse interest in him by the authorities. This is notwithstanding the applicant's evidence regarding the payment of bribes and assistance from agents. Even accepting this, it was open to the IAA to have found that the applicant's ability to travel without incident suggested that the authorities did not regard him as a member or supporter of the LTTE at the time, or an advocate for Tamil separatism, or otherwise a threat to the Sri Lankan government. This reasoning appears to have occurred within the context of country information that was before the IAA that is not in evidence before the Court. It also occurred within the context of other findings that the IAA had made regarding the applicant's lack of adverse profile (including that his release without charge had indicated a lack of profile at the time of his detention, notwithstanding his detention and mistreatment by the authorities). The lack of profile otherwise found by the IAA (at [22]) was capable of informing its subsequent findings that it was not satisfied that the applicant would have been unable to travel without incident absent the payment of bribes.
7. The applicant has not demonstrated, by reference to the material before the IAA, that this reasoning was relevantly closed to the IAA. The applicant's ability to interact with authorities without incident was, at least potentially, logically probative of his profile, even if those interactions (at times) involved the payment of money. As the IAA found, it did not necessarily follow that because money was paid, the applicant would have faced issues if money had not been paid. The applicant has not demonstrated, by reference to the evidence before the IAA, that an alternative conclusion was required on the material.
8. It has also not been demonstrated that the IAA was required to reason that the applicant would face harm as a returning failed asylum seeker without funds to bribe border security personnel. The IAA's finding that the applicant would not face a real chance of relevant harm as a failed asylum seeker was informed by country information regarding the treatment of returnees (at [65]-[70]). That country information, insofar as it is recorded in the IAA's decision, does not appear to have indicated that an ability to avoid harm was contingent upon the payment of bribes. It has not been demonstrated, by reference to that country information (or any other evidence before the IAA) that the IAA's reasoning at [65]-[70] was relevantly closed to the IAA.
9. Having regard to the above, ground 1 is unable to succeed.

1. Under ground 2, the applicant contended that the IAA failed to consider a claim that clearly emerged on the materials regarding his brother's involvement with the LTTE.
2. In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [18], the Full Court (per Collier, McKerracher and Banks-Smith JJ) considered in some detail the relevant principles regarding the obligation upon a decision maker to consider claims, including:

...

• The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

• The Tribunal is only required to consider such claims where they are either:

(a) the subject of substantial clearly articulated argument, relying on established facts; or

(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67])...

• These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

• As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38]))...

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised " or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

1. The applicant observed that, in his entry interview, he had referred to a brother having been a member of the LTTE from 2000 to 2005 before moving overseas. This was in response to a question of whether the applicant or any members of his family had been involved with any political group or organisation. The applicant had also, in response, referred to his own work for the LTTE from 2001 to 2007.
2. The applicant conceded that there was no evidence that either he or his representatives had expressly claimed that he faced an increased risk of harm on the basis of his brother's LTTE membership during the specified period. The applicant accepted, in oral submissions, that he had not given any content to his brother's involvement with the LTTE beyond general reference in the entry interview to his brother being a "member" in the stated period. However, the applicant suggested that the context ought to be considered, which was that at the time of the claim none of the applicant's immediate family were in Sri Lanka but had "all departed and there's no evidence about why or how".
3. The applicant observed that the Delegate at (CB 158) had referred to the following:

The UNHCR Eligibility Guidelines "Assessing the International Protection Needs of Asylum Seekers from Sri Lanka" lists a number of possible profiles of persons seeking international protection that may be suspected of having certain links to the LTTE, including:

1. Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2. Former LTTE combatants or "cadres";

3. Former LTTE combatants or "cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio);

4. Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.

5. LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan Diaspora that provided funding and other support to the LTTE.

6. Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.18

The guidelines state further that anyone with such a profile will need to have the specifics of their individual case assessed.

1. However, the above extract did not state that persons with family links to an LTTE member, in any capacity, faced an increased risk of harm. This was not claimed by the applicant at any stage of the process, notwithstanding the fact that he was represented before the Delegate and the IAA.
2. The applicant submitted that the absence of an express claim ought to be considered in the context of evidence regarding his mental health. However, as was submitted by the Minister, that evidence does not demonstrate that the applicant was unable to articulate a claim regarding his brother's involvement with the LTTE. Although the applicant's statutory declaration (CB 81) referred to "memory loss and mental health issues", this was in the context of explaining difficulties in recalling precise dates. Neither this, nor the letters from medical practitioners at CB 91 and 92, demonstrated that the applicant was unable to recall fundamental aspects of his claims or communicate them to his representatives. In any event, as the Minister submitted, if the claim clearly arose on the materials, then one would have expected that the applicant's representatives would have picked up on it and referred to it in their submissions, even if the claim had not been expressly made.
3. The applicant's claims were expressly made in some detail. Those claims centred around the applicant's own LTTE involvement and experiences with the authorities. The applicant did not claim that his brother's previous membership of the LTTE, for the specified period, had increased his profile or attracted the adverse attention of the authorities whilst the applicant was in Sri Lanka. It is not apparent that the applicant had claimed that the authorities even knew of his brother's membership. At the hearing before the Court, the applicant's representative accepted that no further content had been given to what had been said about the brother's LTTE membership, either at the entry interview or subsequently.
4. In the absence of such content, it is difficult to see how the IAA could have reasoned that the brother's LTTE membership had increased the applicant's profile in a manner capable of giving rise to a real chance of relevant harm. In these circumstances, I am not persuaded to find that a claim of this nature clearly emerged on the materials. As was found in AYY17, such a finding is not to be made lightly. This is particularly so when an applicant has been represented at relevant stages of the protection visa assessment process.
5. The IAA accepted that the applicant had some association with the LTTE. The IAA's reasoning was based upon what had been made of that association by the authorities. In particular, the IAA considered that the applicant's interactions with the authorities demonstrated a lack of ongoing adverse interest in the applicant. Within this context, and absent any claim being made that the brother's LTTE profile had some bearing upon the applicant's risk profile in the future, I am not persuaded that the IAA was obliged to reason that the mere reference to his brother's membership, in a manner not expressly connected to any claim for protection and in an early interview preceding the applicant's protection visa application, was necessarily material to the findings that were made by the IAA. I am therefore not persuaded that there is sufficient basis for drawing an inference that the reference was not considered, or that the error contended by the applicant has otherwise been demonstrated.

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

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.