DCB18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1626

1. By an application filed in this Court on 13 June 2018 (Application), the Applicant seeks judicial review of the decision of the Immigration Assessment Authority (IAA), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On the 14 May 2018 the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant an XE-790 Safe Haven Enterprise Visa (Protection Visa) (IAA's Decision).

1. The Applicant is citizen of Sri Lanka. He arrived in Australia on 13 October 2012.
2. Following an irregular maritime arrival interview on 2 January 2013, the Applicant applied for the Protection Visa on 24 August 2016 (Visa Application). On 23 January 2017 a request to attend an interview on 9 February 2017 was sent to the Applicant's solicitor (Delegate Interview). The Delegate Interview occurred on the 9 February 2017.
3. To be granted the Protection Visa the Applicant was required to satisfy criteria at the time of his Visa Application and at the time of the IAA's Decision.[1]
4. Pursuant to s 36(1A) of the Migration Act an applicant for a protection visa must satisfy:

[...]

(b) at least one of the criteria in subsection (2).

1. Section 36(2) provided the following:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

1. Section 36(2A) provided that a non-citizen will suffer significant harm if:

(a) the non citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non citizen; or

(c) the non citizen will be subjected to torture; or

(d) the non citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non citizen will be subjected to degrading treatment or punishment.

1. Section 5H defined the term 'refugee'. The definition included a person who has a nationality, is outside the country of their nationality and owing to a 'well founded fear of persecution' is unable or unwilling to avail themselves of the protection of that country.
2. Under s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. In sections 5J(2) - (6) and 5K-LA additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out.
3. The Applicant's protection claims were as follows.

(a) The Applicant's family had perceived ties to the Liberation Tigers of Tamil Eelam (LTTE).

(b) The Applicant's father was a civilian killed during the conflict in 1993. The Applicant initially reported that this occurred in the Kumuthini Massacre (which occurred in 1985) but this was changed by the Applicant's migration agent at the Delegate Interview to have actually occurred in the Kallili Lagoon.

(c) The Applicant's brother was involuntarily recruited by the LTTE initially as a teacher and then sent to the front line. Once sent to the front line, the brother absconded. This resulted in the LTTE taking the Applicant as a replacement.

(d) Two days after being forced to join the LTTE, the Applicant suffered injuries as result of bombing on the training camp and spent the following two months in hospital. He then lived with his mother.

(e) One of the Applicant's brothers had disappeared, and the Applicant was unaware of his location.

(f) On 2 June 2009 the Applicant was taken to a rehabilitation centre as result of his ties to the LTTE. He was transported between various rehabilitation centres but finally released on 15 October 2010 on condition that he report to the authorities monthly and was prohibited from leaving the country for two years.

(g) On return to Sri Lanka, he will be arrested, imprisoned, tortured, and then killed by the Criminal Investigation Department (CID) because of his relation to the LTTE, for breaching his rehabilitation conditions, or due to returning to Sri Lanka as a failed asylum seeker.

1. On 25 July 2017 the Delegate refused to grant the Visa (Delegate's Decision).
2. The Delegate accepted that the Applicant was a young Tamil male from the northern provinces of Sri Lanka who had some affiliation to the LTTE.
3. However, the Delegate found that the Applicant lacked credibility and had embellished his protection claims to create a more favourable protection visa application. In particular, the Delegate had concerns about the Applicant initially providing a false claim that his father had died in the Kumuthini Massacre, a well-known event during the conflict which occurred three years before the Applicant was born.
4. The Delegate had further concerns about the Applicant's claims in relation to his involvement with the LTTE but ultimately found that even if those protection claims were to be accepted, the Applicant did not meet the relevant protection criteria to warrant the granting of a protection visa.
5. The Delegate's Decision was referred to the IAA. On 26 July 2017 a direction under s 473FB of the Migration Act setting out the requirements for dealing with the IAA was sent to the Applicant.
6. On 12 August 2017 the Applicant's representative sent correspondence to the IAA containing a number of submissions and supporting documentation.

1. On 14 May 2018 the IAA decided to affirm the Delegate's Decision. The Applicant was notified on the same date.
2. The IAA referred to the Visa Application history. It considered the submissions and country information filed on behalf of the Applicant. The IAA determined pursuant to s 473DD of the Migration Act that the country information, namely a report from the International Truth and Justice Project (ITPJ Report) that post-dated the Delegate Decision was 'new information' but was not satisfied that there were exceptional circumstances to consider the new information.
3. The IAA then turned to the Applicant's protection claims. The IAA accepted that:

(a) The Applicant is a Tamil Hindu male from the Kilinochchi District of the Northern Province of Sri Lanka, an area predominantly controlled by the LTTE during the conflict.

(b) The Applicant, and the Applicant's brothers, had been forced to join the LTTE.

(c) The Applicant was in training for two days with the LTTE before being injured by bombing.

(d) The Applicant and his family were displaced during the conflict.

(e) The Applicant and his family faced some level of monitoring post 2009.

(f) The Applicant left Sri Lanka illegally.

1. The IAA referred to the refugee assessment provisions sections 5H(1) and 5J of the Migration Act.
2. The IAA found that the Applicant's claims lacked credibility as he had embellished his protection claims in order to seek asylum in Australia. The finding regarding credibility was made because of conflicting evidence, particularly, in relation to his father's death, the ambiguities associated with his brother's disappearance and that his mother and sister had not been subjected to harassment due to their efforts made on that brother's behalf.
3. The IAA had serious concerns about the authenticity of the reintegration certificates provided by the Applicant which support his claims with regards to undergoing rehabilitation. This led to the IAA not accepting in full the Applicant's claims about he and his family being held in a rehabilitation centre. The Applicant's ability to complete a fulltime course of study from 2010 to 2011 and then to work as an electrician from 2011 to 2012 further militated against the Applicant's claim that he was subject to harassment and monitoring by the police after being released from the rehabilitation centre.
4. The IAA found that the Applicant was not a refugee within the meaning of s 5H of the Migration Act and consequently did not meet the criterion of s 36(2)(a). The IAA further found that with respect to the complementary protection criterion there were no substantial grounds for believing as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka that there was a real risk that the Applicant would suffer significant harm and did not meet the s 36(2)(aa) criterion. Ultimately, the IAA concluded that the Applicant was not owed protection obligations by Australia.

1. The Application was filed in this Court on 13 June 2018, within 35 days of the date of the IAA's Decision prescribed by s 477 of the Migration Act.
2. On 18 September 2019 and 7 March 2025 Orders were made for the filing of material. The Applicant was required to file his material 28 days before the date of Hearing. He did not do so. On 29 August 2025 the Court received a bundle of documents from the Applicant that was comprised of hundreds of pages.
3. This matter was heard on 3 September 2025 and proceeded in person (Hearing). The Applicant appeared in person with the assistance of a Tamil interpreter. A Solicitor appeared for the Minister. I confirmed that the interpreter and the Applicant understood each other, and that the Applicant was willing to proceed with the hearing. I am satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
4. The Applicant relied upon the following documents:

(a) The Application; and

(b) The Applicant's affidavit filed 13 June 2018, annexing the IAA's Decision (Applicant's Affidavit).

1. The Applicant sought to rely on a number of documents. I refused to consider them as they were filed outside the time prescribed by filing Orders, were not contained in the Court Book and not before the IAA. The Applicant provided a document titled "Notice of Filing" which contained some statements that could be characterised as submissions that replied to the Minister's Written Submissions. The Minister did not object to this document being relied upon and I accepted that document, excluding annexures. (Exhibit A1).
2. The Application does not seek a writ of mandamus directed to the Tribunal requiring it to determine the Application according to law. I explained the technical deficiency to the Applicant. The Minister did not oppose the amendment of the Application.
3. The Minister relied upon:

(a) The Response filed 31 July 2018; and

(b) Written submissions filed on 19 August 2025 (Minister's Written Submissions).

1. The Court has before it an Amended Court Book filed by the Minister on 19 February 2025 which constituted the evidence in the proceeding.
2. The Application contained the following grounds of review:
   1. The decision of the Second Respondent:
      1. Was made without jurisdiction or is affected by jurisdictional error;
      2. Failed to take into account relevant considerations;
      3. Is otherwise contrary to law

Particulars to be provided in accordance with directions of the Court.

1. At the Hearing I took the Applicant to each subparagraph of his grounds of review and asked the Applicant what he said the material error, or the big mistake was in the IAA's Decision.
2. The Applicant said that his Application was prepared by a lawyer and that since he was self represented at the Hearing he did not understand legal terms.

1. The IAA's Decision was made according to the "fast track" review process in Part 7AA of the Migration Act. The fast track review process is a limited review on the papers where the IAA reviews a decision by considering review material provided to it without accepting or requesting "new information". The IAA is under no duty to interview a review applicant, to conduct a hearing or to request new information from the applicant. Section 473DB(1) of the Act relevantly provided:

Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CB by considering the review material provided to the Authority under section 473CB:

(a) without accepting or requesting new information; and

(b) without interviewing the referred applicant.

1. The IAA is given material from the secretary under s 473CB of the Migration Act. The IAA considered all material that was before the Delegate and provided to it.
2. Section 473DC provides the circumstances in which the IAA may get new information. The IAA cannot consider new material unless the criteria is met in s 473DD of the Migration Act.
3. Section 473DC(1) of the Migration Act defined new information as 'documents or information' that: were not before the Minister when the Minister made the relevant decision and the Authority considers may be relevant. Section 473DD of the Migration Act prohibited the IAA from considering new information unless either s 473DD(b)(i) or (ii) of the Migration Act were satisfied.
4. The Applicant provided, through their migration agent, further documentation on 12 August 2017. Those documents were in response to the Delegate's Decision and contained both written submissions addressing the Delegate's Decision (Written Submissions) and the ITJP Report. The IAA found, in relation to the Written Submissions, that these were substantially argument in relation to the Delegate's findings and as such they are not new information and therefore taken into consideration.
5. In relation to the ITJP Report, the IAA found that this was new information as it was not before the Delegate at the time of the Decision. The Report was published on 26 July 2017, after the Delegate's Decision and as such the IAA found it could not have been provided to the Delegate. However, the IAA found that given similar information had already been provided to the Delegate (including an earlier ITJP Report), that there were no exceptional circumstances to warrant consideration of that new information.
6. In their written submissions the Minister submitted on a global basis that that the Applicant's grounds were "bland assertions of error which are meaningless in the absence of particulars" and should be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. It was submitted orally that the "submissions" of the Applicant contained in Exhibit A1 primarily seek a review of the merits of the Visa Application, express a dissatisfaction with decision of the IAA and does not effectively engage with the grounds of judicial review alleged by the Applicant nor with the Minister's submissions in response to those grounds.

Was the IAA's Decision made without jurisdiction or affected by jurisdictional error?

1. The Applicant said that the IAA understood his submission in the wrong way. I asked how it was misunderstood and the Applicant explained that it was found that because he was reunited with his family he would not be a threat or a person who would be persecuted by the Sri Lankan Government. It was also submitted that the authority did not accept that the Applicant's father was killed by a gun shot wound.
2. The Applicant complained that his brothers were accepted as refugees in France, but the IAA did not accept the information.
3. In Exhibit A1 the Applicant's submissions centre around the fact that he did not have legal representation for these proceedings. The lack of legal representation in this proceeding cannot constitute a jurisdictional error on the part of the IAA. No adjournment was sought by the Applicant regarding seeking legal representation for the Hearing. In any event the Applicant had more than adequate time to secure legal representation for these proceedings. The Applicant filed the Review Application in 2018 and had been on notice of the date of the hearing before me since 22 July 2025.
4. The Minister submitted that the IAA undertook the review in accordance with its statutory obligations as contained in Part 7AA of the Migration Act namely that the IAA was required to review the Delegate's Decision without interviewing or accepting new information from the Applicant and without inviting the Applicant to appear to give evidence.
5. The oral submissions made by the Applicant were akin to those contained in Exhibit A1. The submissions invite me to undertake a merits review and do not embrace the ground of judicial review alleged in the Application.
6. I agree with the submissions of the Minister. The ground of jurisdictional error asserted is meaningless. The IAA undertook its review as required by statute. No jurisdictional error has been identified by the Applicant. Ground 1(a) must be dismissed.

Did the IAA fail to take into account relevant considerations?

1. The Applicant disagreed with the IAA's findings. In Exhibit A1 the Applicant asserts that the IAA failed to identify the Applicant and his brothers involvement with the LTTE and their respective rehabilitation.
2. In oral submissions the Applicant complained that the IAA:

(a) found the rehabilitation certificates were not credible;

(b) did not accept that his brothers were granted refugee status in France;

(c) did not accept that the Applicant's Father was killed by the Sri Lankan authorities;

(d) did not accept that he and his brothers were rehabilitated; and

(e) did not accept that there was a connection between his brother's disappearance and his own safety.

1. The Minister submitted that the Applicant has not identified the relevant considerations he says that the IAA failed to take into account. The Minister took me to paragraph [6] of the IAA's decision which set out the Applicant's claims and then paragraph [10] to [30] which set out the Applicant's evidence and consideration of each of his claims. The IAA made adverse findings with respect to each of the Applicant's claims. The Minister described the IAA's reasons as a comprehensive assessment, that the findings were set out and the IAA was not required to uncritically accept the Applicant's claims and evidence CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 per McKerracher, Griffiths and Rangiah JJ at [65].
2. With respect to those matters specifically complained of by the Applicant. The Minister submitted that the IAA considered and made findings in its Decision:

(a) in paragraph [18] regarding the Applicant's brother's disappearance and accepted the brother did disappear.

(b) in paragraph [20] regarding the shooting death of the Applicant's father which the IAA accepted.

(c) in paragraph [21] regarding the Applicant's brothers seeking asylum. The IAA accepted one sought asylum in France and another brother in Ukraine.

1. In addition to the matters identified by the Minister, the IAA considered and made findings in its Decision:

(a) in paragraph [16] regarding the certificates of rehabilitation and the periods of rehabilitation claimed, finding that the anomalies in the certificates and the documents made them neither reliable nor credible.

(b) in paragraph [17] regarding the Applicant's brothers being rehabilitated. It was accepted by the Tribunal that one brother was rehabilitated but that the Applicant and the other brother were not.

(c) in paragraph [26] and [30] regarding the connection between the brother's disappearance and his own safety. The IAA found that the Applicant was not at risk of harm, detention or mistreatment because of the circumstances of any of his brothers.

1. I accept and agree with the Minister's submission the IAA's Decision clearly sets out the information before it and the Applicant's claims. The information and claims were the subject of a detailed analysis. The Applicant is unable to point to a jurisdictional error. This ground must be dismissed.

1. When I asked the Applicant about this ground, he said he did not understand what was meant by 'contrary to law'. The Applicant did not want to press this ground.
2. In so far as it is necessary in circumstances where this ground was abandoned the Minister submitted that the ground was unparticularised and that an error does not arise. The ground must be dismissed.

1. No jurisdictional error has been identified. The Application must be dismissed.
2. The Minister sought costs fixed at $6,500.00 which is less than the scale amount prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). Accordingly, the Applicant is to pay the Minister's costs in the sum of $6,500.00.
3. Orders will be made accordingly.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] Migration Regulations 1994 (Cth), regs 790.21 and 790.22.