DMP18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2079

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).
2. For the following reasons, I consider that the IAA's decision was affected by jurisdictional error. Writs will therefore issue, quashing the decision and requiring that the matter be redetermined according to law.

1. The applicant is a citizen of Sri Lanka who arrived in Australia some years ago. On 31 October 2016, the applicant applied for a protection visa.
2. On 21 August 2017, the Delegate refused to grant the applicant a protection visa. The matter was then referred to the IAA for review.
3. On 7 June 2018, the IAA affirmed the Delegate's decision.

1. The IAA found that it was precluded from considering certain new information that been provided to it after the Delegate's decision (at [4]-[11]). As that reasoning is the subject of challenge in this proceeding, it will be considered further below.
2. The IAA accepted:

(a) the applicant was a Hindu Tamil from the Northern Province of Sri Lanka (at [15]);

(b) the applicant and his family were displaced from their home area during the war, were held in an camp in a different region and then returned to their home area after the Sri Lankan Army (SLA) regained control of it from the Liberation Tigers of Tamil Eelam (LTTE) (at [17]);

(c) certain claims regarding the applicant's brother, namely that: (i) he did compulsory LTTE training; (ii) his father-in-law was an LTTE supporter and organiser; (iii) his sister-in-law had been in the LTTE and died in a bomb attack; (iv) he was harassed and beaten by the SLA, periodically summoned to the SLA camp nearby and accused of helping the LTTE; (v) he was questioned about his father-in-law and Maveerar gatherings; (vi) he left the country seeking asylum after the SLA assaulted him; and (vii) he was questioned about his involvement with the LTTE and asked about other members of his family including the applicant (at [18]);

(d) the applicant's sister (S1) had been missing after being recruited to the LTTE (at [19]);

(e) the applicant was detained at an army checkpoint for overstaying his pass and was punched, beaten, photographed, videoed and interrogated about whether he had LTTE training before he was permitted to leave (at [20]);

(f) the applicant's friend (S2) was involved with the LTTE (at [21]);

(g) the applicant assisted the LTTE by purchasing food from time to time (at [21]);

(h) the applicant acted as a go-between on 3 occasions and arranged, on behalf of S2, for a van driver to transport weapons (at [22]);

(i) there was a grenade attack in which S2 may have been involved (at [27]);

(j) bullets were fired into the applicant's parents' house during the war (at [31]);

(k) the applicant was taken from his home on one occasion and detained for some time, during which he was questioned on five occasions, beaten and had a toenail pulled out by a plier (at [32]);

(l) the applicant's treatment during this period was traumatic (at [33]);

(m) the applicant was detained, questioned and threatened on another occasion (at [35]);

(n) three months after he came to Australia, the applicant's brother (S3) was questioned about him (at [37]);

(o) the applicant participated once as an observer at a Martyrs' Day commemoration in Australia (at [42]); and

(p) the applicant had some visible scarring (at [55]).

(a) the applicant was involved in the transportation or storing of weapons for the LTTE over an extended period from 2004 until 2006 (at [27]);

(b) the applicant was involved in an LTTE operation which involved a grenade attack on a sentry post in which an SLA member was injured (at [27]);

(c) S3 was arrested in a particular year and asked about the applicant's whereabouts (at [30]);

(d) the applicant's detention, questioning and mistreatment on one occasion was indicative of any adverse interest in the applicant personally or related to his association with S2 or low-level LTTE work (at [33]);

(e) the applicant's treatment on another occasion was an indication of adverse interest personally in him by the authorities at the time (at [35]);

(f) the incidents experienced by the applicant's brother and father in 2011 and 2012 were other than routine harassment that Tamils were subjected to at that time (at [34]);

(g) a court case has been filed against the applicant (at [36]);

(h) in 2013, people went to his mother's home at night asking the whereabouts of her son and daughter and threatening to arrest them (at [38]);

(i) the applicant's family were subjected to an extortion attempt in relation to the location of his sister, S1, or that she was a high-ranking person in the LTTE (at [40]);

(j) the applicant was at risk of harm because his personal details were disclosed on the Department's website (at [41]);

(k) the applicant had shared anti-government material on Facebook (at [42]);

(l) the applicant was at risk of harm from the authorities because of any activities in Australia (at [42]); or

(m) the applicant was at risk of suffering harm because of his ethnicity, age, gender, relationship with S2, work for the LTTE, family connections to the LTTE, activities in Australia, the 2014 data breach, imputed political opinion, or his origins in a former LTTE-controlled area (at [49]).

1. The IAA accepted that the applicant departed Sri Lanka illegally and would be perceived as a returning asylum seeker from the west. The IAA accepted that the applicant may be investigated 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 [50]-[61] and [65]-[66]).
2. Having regard to the above, the IAA was not satisfied that ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act) had been met (at [61]-[69]). The IAA accordingly affirmed the Delegate's decision.

1. The applicant sought judicial review of the Tribunal's decision through an application filed on 5 July 2018. The matter remained in the central migration docket for some time and was previously docketed to another Judge before being allocated to my docket more recently and listed for hearing. The applicant ultimately relied upon an amended application, filed on 27 August 2025, in which the following grounds were relied upon:

Ground One: Jurisdictional Error - The Immigration Assessment Authority (IAA) adopted the wrong construction of section 473DD, fell into jurisdictional error in failing to consider the new information provided by the Applicant and in determining that there were no exceptional circumstances in existence in the case to justify considering the information (without considering whether s.473DD(b) had been satisfied). Furthermore, the IAA committed jurisdictional error by adopting and applying unduly narrow interpretation of the term "exceptional circumstances" and accordingly, failed to consider all the matters capable of constituting the circumstances of his case as exceptional.

PARTICCULARS

1. In his submission to the IAA dated 13 September 2017, the Applicant provided New Information based on latest information received from his parents post-delegate's decision. (CB173-174)...

Ground Three

Ground Three: Jurisdictional Error. The Immigration Assessment Authority (the "IAA/Authority) failed to consider whether the Applicant faced Significant Harm pursuant to the Complimentary Protection (in circumstances where it accepted evidence of risk of torture) leading to a failure to exercise jurisdiction, giving rise to jurisdictional error.

PARTICULARS

a) Having accepted that "there continued to be reports from a number of credible sources of ill-treatment and torture by the Sri Lankan police including from the UN Special Rapporteur and the HRCSL but assesses that torture in Sri Lanka, whether perpetrated by the military, intelligence or police forces is not presently systemic or state sponsored" [Paragraph 45 of the Decision Record], the IAA failed to assess whether such torture (whether systemic, state sponsored or not) constituted Significant Harm for the purpose of the assessment under s 36(2)(aa) of the Act.

b) With reference to the Applicant's claim that he was taken from his home by unknown persons and detained for 28 days shortly after his return from [redacted to prevent identification of the applicant], the Authority accepted that he was questioned on five occasions during this period, was beaten and had a toenail pulled out by a plier. The Authority accepted that his detention and treatment was traumatic but considered that his detention was criminally motivated and opportunistic. [CB 32 & 33].

c) In his written statement the Applicant claimed "My mental health has been severely affected by the torture and trauma and fear to which I was subjected in Sri Lanka". (CB 92 at [2]). He also claimed that if returned to Sri Lanka, he feared that he "may be abducted by the authorities or agents of the authorities, tortured and killed and my body disposed of" (the "Mental Health Claim")

(Per the original)

1. In relation to ground 1, the applicant raised a series of complaints in relation to how the IAA applied s 473DD of the Act. With respect, this was not articulated in the clearest fashion, with the contended categories of error varying across the application, oral submissions and the written submissions. The Minister has adopted a reasonable and pragmatic approach to this difficulty, in seeking to respond to the various iterations of error said to arise.
2. I have not been persuaded that the majority of the applicant's complaints in this regard ought to succeed. This is essentially for reasons raised by the Minister in oral and written submissions. It is not necessary to set out in detail why those arguments have not been accepted. This is because I accept that the applicant has demonstrated relevant error in relation to one of the categories relied upon. That category concerns what the applicant described as the "Paramilitary Bribe Claim".
3. The new information provided in this regard was set out as follows in submissions to the IAA:

... I wish to provide you some latest information that I received from my parents when I contacted them after the Department refused my case. I spoke to my father about my fear of returning back to Sri Lanka and he emphasised that, I should take legal action or to find another avenue to stay away from Sri Lanka and not to return back under any circumstances as the authorities continue to visit them inquiring to my father about his children including me. My father told me three weeks ago that my mother had paid a paramilitary to obtain information as to my sister's whereabouts as she was still missing. My parents were under the impression that my sister would be held in secret detention centres among the Singhalese population in the south of Sri Lanka. The paramilitary started demanding money from my mother on a regular basis on the grounds that he had to travel to many areas in search of my sister. As my parents couldn't afford to give money constantly, they gave up the idea of finding my sister.

This paramilitary informed the CID officers as to my mother's involvement with the paramilitary in searching for my sister. They arrived home and beat my mother for bribing the paramilitary to locate my sister. The officers threatened that they have a list of persons who had fled to Australia and were detained at the detention centre. They confirmed with my mother that my name is also one of the refugees in Australia. They said that I had left the country without their permission by illegal means and that my mother would not see me alive when I would be deported back to Sri Lanka. They had questioned about my elder brother in [another country] and my other brother who fled to [another country] after he was tortured one month ago and further they asked when they would be returning back. They told my mother that they would permit her to see my sister... only if my mother could get me back to Sri Lanka and hand me over to them as they had not completed their investigation. My father told me that the CID officers had threatened the neighbours stating that they had to inform them if any of my parent's children were seen back in Sri Lanka.

1. The IAA reasoned as follows at [8]-[11] of its decision:
   1. Given the timing of the claimed visit by the CID I accept that, if true, this and the claims associated with it could not have been provided to the delegate before he made his decision. However, I am not permitted to consider this information unless I am satisfied that there are exceptional circumstances to justify considering it and having regard to all the circumstances I am not so satisfied. The claim that the authorities continue to visit his parents asking after him and his siblings is central to his claims for protection and goes to the claimed ongoing interest in the applicant and those of his siblings who no longer live in Sri Lanka. In my view, if these visits had in fact occurred, he would have mentioned them before, either in his written statement or his SHEV interview, or to his representative for inclusion in the submission to the delegate. The evidence in his SHEV interview was that the last time his parents were visited by the authorities was in 2013 and I do not consider it plausible that after a gap of four years, the CID would suddenly visit his parents making enquiries about their children. Furthermore, the claim that his parents have been regularly paying a member of the paramilitary for information about his sister who disappeared ten years ago is not consistent with the evidence he gave in his SHEV interview that there was only one occasion in 2015 that his mother was asked for money in exchange for information about his sister but was told it was insufficient to get her released, which implies her location was known at that time. He did not claim his mother increased the amount she gave or that she continued to give money and the new claim that she gave money on a regular basis to enable the person to travel around in search of his sister is not consistent with that earlier evidence. Further, it is not apparent to me firstly, why a member of a paramilitary organisation would report their involvement with his mother to the CID and risk their own extortion attempts coming to light or secondly, why the CID would be interested in whether or not his mother paid money to them for information about his sister. The applicant has not previously claimed that his brother, S3, was of any interest to the authorities other than on one occasion eleven years ago in 2007 when, according to his earlier evidence, he was questioned about the applicant but not mistreated. He has not provided any details about why S3 was tortured a month ago or why he went to [another country] and does not otherwise state its relevance for his claims for protection. The claim that the authorities have not completed their investigation into him does not seem to me consistent with other information provided in his written SHEV statement that a case was filed against him in 2013 alleging he had weapons with him which suggests any investigation into him has been finalised and legal action has commenced as a result.
   2. The applicant referred to the February 2014 data breach in the written statement submitted with his SHEV application, claiming this as 'other reasons' he fears persecution. There is no other information before me to indicate that he was affected by the breach. I have taken into consideration that the data breach occurred in 2014, some three years prior to when he claims the CID spoke to his mother about having his name on a list of people detained in Australia. I do not consider it credible that if the authorities had been regularly enquiring of his parents about him and his siblings, they would wait until August 2017 to raise with his parents their knowledge that he was in Australia and detained in the detention centre.
   3. Throughout the processing of his application the applicant's claims have continued to evolve and he has now made a new series of bald assertions with little in the way of detail or context. None of these claims makes sense in light of other evidence provided in his written SHEV statement and SHEV interview about his profile and I simply do not consider them credible. The Full Federal Court has emphasised that it would be contrary to the legislative objective of the 'fast track' process 'to expose the [IAA] to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced'1 and it appears to me that this is what the applicant is attempting to do.
   4. Having regard to all the circumstances, I am not satisfied that exceptional circumstances exist to justify considering the new information.

1. There are a number of aspects of the IAA's reasoning that are difficult to understand within the context of the new information in question.
2. The first is the IAA's consideration that, if the claimed visits had occurred, the applicant would have mentioned them before the Delegate's decision. This is difficult to understand, in circumstances where the applicant claimed to have learned of the visits after the Delegate's decision. This was acknowledged by the IAA in the first sentence of [8], in which the IAA found that: "Given the timing of the claimed visit by the CID I accept that, if true, this and the claims associated with it could not have been provided to the delegate before he made his decision". The IAA nonetheless went on in the paragraph to state: "In my view, if these visits had in fact occurred, he would have mentioned them before, either in his written statement or his SHEV interview, or to his representative for inclusion in the submission to the delegate". This appears to have been relied upon by the IAA (amongst other things) at [10] in rejecting the credibility of the new information.
3. The Minister accepted that there was a "peculiarity in the drafting" in [8] which, on one reading, "seems to be saying entirely contradictory things about the claims". However, the Minister submitted that it was sufficiently clear that the IAA was proceeding on the basis that the events in question had occurred after the Delegate's decision, both in their occurrence and the applicant's discovery of them in conversation with his father.
4. There is some support for this in the paragraph. Part of the IAA's reasons for rejecting the credibility of the claimed visits appears to have relied upon an understanding that there was a "gap of four years" that had been claimed regarding the family being visited by the authorities in 2013 and 2017. However, I am not convinced that this interpretation was applied consistently throughout the paragraph. In particular, it is unclear why the IAA would have drawn an adverse credibility inference from the visits not being mentioned before the Delegate's decision, if the IAA accepted that it was claimed that they had occurred after the Delegate's decision.
5. The Minister suggested that the IAA's concern potentially picked up a question of whether the applicant had meant to convey that some of the visits had occurred prior to the Delegate's decision. The Minister observed that in [6] the IAA had stated, in relation to the claim that his father had told him that "the authorities continue to visit them", it was "not clear what he means by this in relation to the regularity or frequency of visits by the authorities and in fact he stated in his SHEV interview that the last time the authorities visited his parents was in 2013". However, even if there was some ambiguity in what the applicant was saying that his father had described, the applicant claimed that the information had only become available to him after the Delegate's decision.
6. It is not clear that the IAA's reasoning at [8] was premised on concerns regarding ambiguity. Rather, the IAA appears to have regarded as problematic an understanding of the claim as being that the visits occurred after the Delegate's decision, whilst simultaneously (and collectively) finding problematic an understanding of the claim to the contrary. Put another way, the IAA appears to have used against the applicant an understanding of the claim one way, whilst simultaneously holding against him a contrary understanding of the claim. Paragraph 8 does not demonstrate that the IAA was conscious of the potential contradiction in this approach (i.e. that it was reasoning in the alternative).
7. Even if error were not demonstrated on this basis, also troubling is the IAA's treatment regarding what was said to have occurred in relation to the applicant's sister. The IAA appears to have understood the claim in this regard to be that the applicant's "parents have been regularly paying a member of the paramilitary for information about his sister" and that the applicant's mother "gave money on a regular basis to enable the person to travel around in search of his sister". This was considered inconsistent with evidence given by the applicant prior to the referral to the IAA.
8. There are a number of issues with this.
9. First (and most benignly), the applicant had not claimed that his mother had been "regularly paying a member of the paramilitary for information about his sister". Rather, the claim was that money had started being demanded on a regular basis. This was on grounds (apparently stated by the person seeking money) that the person "had to travel to many areas in search of [the applicant's] sister". The family had decided that they could not afford the demands.
10. Second, it is not clear how a claim that the applicant's mother had been asked for money some time after 2015 could be regarded as inconsistent with a claim that she had been asked for money in 2015. The IAA's reasoning in this regard appears to have assumed that the applicant was saying that the additional demands occurred before the Delegate's decision. However, this was not claimed in the submissions to the IAA (even if there was some ambiguity regarding timing). As was acknowledged at [6] of the IAA's decision, the applicant had not stated the timing of the claimed visits (as opposed to when he claimed that he had learned of them).
11. Third, the IAA considered that "the new claim that [the applicant's mother] gave money on a regular basis to enable the person to travel around in search of his sister" was inconsistent with the applicant's evidence in his SHEV interview that "there was only one occasion in 2015 that his mother was asked for money in exchange for information about his sister but was told it was insufficient to get her released, which implies her location was known at that time". The applicant's evidence at the SHEV interview in this regard appears to have aligned with his statement, in which the applicant had claimed that the family had been visited by a man in 2015 "saying" that his sister "was being held in a torture camp and demanding money for her to be released" (CB 100).
12. However, the applicant did not claim any personal knowledge of whether his sister's location was known at the time. To the contrary, he expressly emphasised in relation to the 2015 approach that his "parents were not sure if the man was telling the truth or just trying to get money out of [the] family" (CB 100).
13. It is therefore not apparent how the IAA could have considered the applicant's account of the 2015 incident to have been inconsistent (and therefore capable of undermining the credibility of his claims) by reference to the location of the applicant's sister. The applicant had not claimed that his sister's location was known to him (or was even necessarily known to those seeking money from the family). The applicant had claimed that the family had been told different things about his sister's location by a person (or persons) seeking money from the family at different times. This was in circumstances where the applicant had expressly acknowledged that the family did not know if what they were being told was true, or if it was simply being told to them in order to obtain money. Claiming to have been told different things (that were possibly untrue) by persons trying to obtain money is not the same thing as making an inconsistent claim.
14. It follows from the above that I accept the applicant's submission that certain aspects of the IAA's reasoning at [8] were not logically available to the IAA on the material. Rather, they appear to have been premised upon a misunderstanding of the applicant's claims.
15. The question, then, is the consequence of this. The IAA gave other reasons at [8] to [11] for finding that the requirements of s 473DD of the Act were not met. This included reasons that appear to have been open to the IAA and not to have suffered from the issues identified above.
16. However, it is apparent that the IAA relied upon its problematic reasoning in rejecting the credibility of the new information at [8] to [10]. At [10], the IAA expressed general concerns in relation to the new information, including its concern that none of the new claims "mad[e] sense" in light of the applicant's earlier evidence and claims. Had the IAA not proceeded upon a misunderstanding of the claims in question, then its assessment of whether the new claims met s 473DD of the Act may have been different. As the IAA acknowledged at [8], claims of ongoing interest in the applicant's family were central to the applicant's claims for protection.
17. I therefore find that the errors in question were of significance within the context of the IAA's decision. I accept the applicant's submission that they caused the IAA's exercise of discretion under s 473DD of the Act to miscarry. I accept that this resulted in jurisdictional error.

Ground 3 - the complementary protection criterion

1. Having regard to the above, it is not strictly necessary to determine ground 3. However, I note that I have not been persuaded that the application ought to succeed on this basis.
2. In relation to particular (a), the IAA accepted that "there continued to be reports from a number of credible sources of ill-treatment and torture by the Sri Lankan security services" at [45] of its decision. However, having considered other country information before it and the applicant's circumstances at [45]-[49], the IAA was not satisfied that the applicant was "at risk of suffering harm" by reference to various aspects of his background and identity. These findings, insofar as they concerned the matters considered at [43]-[49], were dispositive of the applicant's claims in relation to both the refugee and the complementary protection criterion. The IAA was therefore not called upon to assess whether torture or ill-treatment faced more generally met the complementary protection criterion. The IAA found, at [63]-[69], that it was not met in the applicant's case.
3. In relation to the applicant's mental health, the applicant did claim that his "mental health has been severely affected by the torture and trauma and fear to which [he] was subjected in Sri Lanka" (CB 92 [2]). However, this appears to have been directed towards seeking to explain difficulties that may arise in his evidence. I am not persuaded that a claim clearly arose to the effect that the applicant may face harm capable of attracting the complementary protection criterion on account of his mental health. Nor am I persuaded that it arose, without more, from his references to treatment in Australia or from the IAA's acceptance that his past experiences had been traumatic (at [33] and [49]). I am also not persuaded that it arose, as was submitted in post-hearing submissions, from the applicant's claim in a statement that he feared that he "may be abducted by the authorities or agents of the authorities, tortured and killed and [his] body disposed of" (CB 100 [50]).
4. As was observed in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ), a finding that a claim not expressly made has clearly emerged is not to be made lightly. I am not persuaded it is able to be made in this case. This is in circumstances where it has not been made clear how any future harm to the applicant referable to his mental health could be said to have met, on the materials before the IAA, the definition of significant harm in s 36(2A) of the Act (including the aspects of intention considered in cases such as SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362). As the Minister submitted, the IAA otherwise rejected the applicant's claims to face relevant harm from the Sri Lankan authorities.

1. As I accept that relevant error has been demonstrated in relation to ground 1, the application before the Court succeeds.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.