ELZ18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1920

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 17 March 2017, the applicant applied for a protection visa.
2. On 9 October 2017, the Delegate refused the application. The matter was then referred to the IAA for review of the Delegate's decision.
3. On 8 August 2018, the IAA affirmed the Delegate's decision.

1. The IAA considered that it had received certain new information, which it found did not meet the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) (at [4]-[8]). As will be considered further below, it is accepted by the parties that the IAA erred in considering that certain country information before it was "new information". At [10], the IAA observed that it had obtained certain new information and found that the requirements for consideration of it were met.
2. The IAA accepted that:

(a) the applicant was a Sri Lankan Christian of Tamil ethnicity from the area claimed (at [14]);

(b) the applicant worked as a fisherman in Sri Lanka (at [15]);

(c) the applicant had seen several atrocities and harassment of Tamil people whilst growing up, including the taking away of people who were identified as members of the Liberation Tigers of Tamil Eelam (LTTE) by masked men (at [16]);

(d) the applicant had been displaced several times (at [16]);

(e) the applicant joined and became a political member of the Tamil Eelam Liberation Organization (TELO) (at [17]);

(f) the applicant worked in promoting the TELO and supporting the Tamil National Alliance (TNA) during election campaigns through canvassing and propaganda work (at [19]);

(g) the applicant's work in support of the TELO, including attending political events and meetings, was directed towards canvassing/propaganda type activities in support of the TELO/TNA during election campaigns (at [20]);

(h) the applicant had previously been arrested for offences under the Parliamentary Election Act 1981 (SL) (Election Act) (at [23]);

(i) the applicant attended some LTTE events and celebrations during the ceasefire period (at [25]);

(j) the applicant (and his brother) were attacked by the navy within the context of a fishing related dispute between two communities (at [34]);

(k) the applicant's fishing equipment and the fish hut he used were burnt down, as was the property of other Tamil fishermen at the time, as a result of a dispute involving the local Muslim community over the fishing harbour shore (at [34]);

(l) Tamils experienced ongoing issues in Sri Lanka (at [53]);

(m) the applicant would be identifiable as a person who sought asylum in Australia and who had departed Sri Lanka illegally (at [67]);

(n) the applicant may be arrested and charged for his illegal departure, be detained for a limited period and face a fine (at [75]-[81]);

(o) the applicant may be visited by the authorities upon his return (at [86]); and

(p) the applicant may be monitored upon return on the basis of his returnee status and may face some social stigma as a returnee (at [86]).

(a) the applicant held a senior leadership role in the TELO or TNA (at [21]-[22]);

(b) the applicant's role went beyond a low-level TELO/TNA supporter (at [22]);

(c) the applicant was engaged in political activities in Sri Lanka that gave him any significant profile (at [22]);

(d) the applicant was subjected to prolonged detention or inflicted with excessive or harsh punishment as a result of his arrests under the Election Act (at [24]);

(e) the applicant would be of adverse interest to the authorities on account of his previous offences (at [24]);

(f) the applicant came to the adverse attention of the authorities as a result of his participation in LTTE events and celebrations during the ceasefire period (at [25]);

(g) the applicant would be perceived to have had any significant role or involvement with the LTTE on account of having previously attended LTTE events and ceremonies during the ceasefire period as a member of the TELO or on account of his election activities in support of the TELO/TNA (at [48]);

(h) the applicant would support a Tamil separatist state in continuing any political activities upon his return to Sri Lanka, or would be perceived to have done so in the past (at [26]-[27] and [48]);

(i) the applicant faced any further threat from the Muslim community or any other persons after the fishing related incident (at [34]);

(j) the applicant was specifically targeted by the navy on instructions from an influential political figure because the applicant had campaigned against him or the ruling party during the 2010 elections (at [35]);

(k) the applicant sought protection from his member of parliament and travelled with him to Colombo (at [35]);

(l) the applicant was of any adverse interest to the authorities or any other persons in Sri Lanka at the time of his departure (at [36]);

(m) the applicant's activities in support of the TELO/TNA made him a person of adverse interest or that he would be perceived, as a result of such activities or for any other reason, as a person with a significant role or influence in the TELO/TNA (at [37]);

(n) the applicant faced a real chance of harm from the authorities or any persons in Sri Lanka on account of his association with the TELO/TNA, even if the applicant continued to engage in political activities at the same level as in the past (at [43]);

(o) the applicant had engaged in Facebook activity otherwise than for the purpose of strengthening his claim to be a refugee (at [45]);

(p) there was a real risk that the applicant would face significant harm on account of his Facebook posts/social media activity in Australia (at [95]);

(q) the applicant would face a real chance of being detained under the Prevention of Terrorism Act (SL) (at [52]);

(r) the applicant faced a real chance of relevant harm from the authorities on the basis of any real or imputed LTTE support or link, because he would be considered a threat to the Sri Lankan state, or otherwise (at [52] and [96]);

(s) the applicant would attract any adverse attention, including monitoring, from the authorities upon return (at [58]);

(t) the applicant faced a real chance of harm on account of his Tamil ethnicity, his origins from the north of the country, being from a former LTTE controlled area, or due to his political activities or past experiences (at [66]);

(u) the applicant faced a real chance of relevant harm in consequence of his illegal departure (at [84] and [96]-[97]);

(v) the applicant would be unable to find employment or earn a livelihood as a fisherman (at [87]); or

(w) any monitoring or social stigma the applicant would face would result in serious or significant harm (at [98]).

1. Having regard to the above, the IAA concluded that the applicant was unable to meet the criteria for the protection visa (at [88] and [99]). Accordingly, the IAA affirmed the Delegate's decision.

1. The applicant sought judicial review of the IAA's decision through an application filed on 30 August 2018. The matter remained in the central migration docket for some years and was previously docketed to another judge before being allocated to my docket more recently and listed for hearing.
2. The applicant was initially unrepresented. On the first day of the hearing of the matter, an issue was discussed regarding whether the IAA may have mistakenly considered that a sizable country information report that was before it (ACCORD Report) was new information. The IAA had found, at [6] of its decision, that it was unable to consider the report as "new information" by reference to s 473DD of the Act.
3. The applicant engaged legal representation by the time of the resumed hearing. His Counsel made no submissions in support of the grounds articulated in the written application and, in these circumstances, I have not been persuaded that those grounds demonstrate jurisdictional error. Instead, leave was sought and granted for the applicant to rely upon grounds identified in the applicant's written submissions. In this regard, it was not in dispute that the IAA had mistakenly found that it was unable to consider the ACCORD Report as "new information". It was agreed that the ACCORD Report, which was cited in a footnote in the Delegate's decision (CB 384), was relevantly before the Delegate. It was therefore not "new information" subject to the constraints against consideration contained within s 473DD of the Act.
4. The dispute between the parties was therefore confined to whether or not the IAA's error was material in the sense considered in cases such as LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (LPDT). If it were not material, then jurisdictional error would not be demonstrated.
5. The threshold for finding materiality is not a high one. It requires consideration of whether the applicant was deprived of "the possibility of a different outcome". This requires consideration of whether the decision under review "could, not would" have been different, realistically, had the error not occurred: LPDT at [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
6. For the following reasons, I accept the applicant's submission that the relevant threshold has been met in the present case. In doing so, I have not accepted all of the examples relied upon by the applicant as bearing upon the question of materiality. I have found the Minister's submissions more persuasive in relation to some of the examples relied upon by the applicant. Nonetheless, by reference to the below, I accept that the threshold has been reached.

1. The ACCORD Report (at CB 453) contained the following information from the Centre for Monitoring Election Violence regarding the 2015 Presidential Election:

... "By the end of election campaign period, CMEV reported a total of 543 incidents of election related violence and malpractices of which, 304 were categorized as Major Incidents involving 1 murder, 3 attempted murders, 3 grievous hurt, 1 hurt, 64 assaults, 32 threat and intimidation, 17 damage to property, 1 robbery, 11 arsons, 1 abduction, 11 bribery and 159 instances of the misuse of state resources. Minor incidents were recorded at 239. Most of the Major Incidents were reported from Jaffna (25), Kandy (24) and Kurunegala (23) districts. In 169 instances, the ruling UPFA was the perpetrator, while 51 complaints were received without identification of the party affiliation of the perpetrator." (CMEV, January 2015, p. 7)

1. The applicant observed that the IAA had relied upon information regarding the level of violence surrounding the 2015 elections at [39]-[40] of its decision:
   1. In terms of the conduct of elections in Sri Lanka, DFAT's 2017 report indicates that elections have never been marred by large-scale violence or rigging, although they have not always been described as entirely free and fair. However, DFAT notes that the most recent elections in 2015 have proceeded relatively smoothly, with the Presidential election in January 2015 being generally peaceful and orderly and the parliamentary election in August 2015 being described by the Commonwealth Observer Group as 'credible, met the key criteria for democratic elections, and the outcome reflected the will of the people'.14
   2. A report by the Centre For Monitoring Election Violence (CMEV) in relation to the 2015 parliamentary general election indicates that the incidents of violence during the campaign for this election were of a relatively low scale and intensity in comparison to the past.15 In this report CMEV noted there were a small number of serious incidents of violence in Batticaloa during this election, one of which was the shooting death of a UNP supporter in the lead-up to this election. In its 2018 report DFAT indicates while violent incidents spiked in the weeks preceding the 2015 parliamentary elections, reports of political violence have declined since the 2015 election.
2. The Minister observed that there was other information before the IAA regarding violence during the 2015 elections: Affidavit of Sivarama Krishnan Valliappan dated 26 September 2025 at PDF 47. In these circumstances, it was submitted that the additional information could not have affected the outcome before the IAA.
3. I am unable to accept this. Although there was some overlap regarding the information that the IAA found that it could and could not consider, this information was not identical. For example, lower numbers were provided in the material before the IAA for "Major Incidents" in contrast to that referenced in the ACCORD Report (although a higher number was provided for total incidents). As the applicant observed, the ACCORD Report also contained information regarding numbers attributed to the "ruling UPFA" as "the perpetrator". The ACCORD Report contained further breakdown of the types of incidents in question.
4. The IAA may have reasoned that the difference in numbers was insufficiently substantial to affect its reasoning. However, it is possible that it may have reasoned differently. It is possible that the IAA may have found the figures and additional information regarding "Major Incidents" significant. It is also possible that the differences in the numbers may have caused the IAA to question the data that it relied upon at [39]-[40]. The IAA may also have found the information regarding incidents attributed to the UPFA significant.
5. It is possible that the differences in the information in the ACCORD Report regarding electoral violence could have affected the IAA's evaluation of how "peaceful" or "smooth" the elections in 2015 were (whether relatively or otherwise). It is therefore possible that the information may have affected the IAA's assessment of risk to the applicant were he to engage in political activities, as the IAA accepted he may do, in the future (particularly in the periods around elections).
6. Ultimately, evaluation of the material was a matter for the IAA: see BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 at [47]- [51] (Stewart J).
7. For the above reasons, it is possible (even if it is not necessarily likely) that the outcome may have been different had the IAA considered the ACCORD Report.

1. The ACCORD Report (at CB 504) included the following information:

... Freedom of Torture, an organisation providing clinical services to survivors of torture in the UK, as well as advocating for their rights, published a report in August 2015 based on the study of 148 Sri Lankan torture cases. In the cases studied, torture was perpetrated between 2009 and 2013, although it is noted that "cases of more recent torture, including from 2014 and even 2015, have since been referred to Freedom from Torture" (Freedom from Torture, 13 August 2015, p. 9). A key finding of the research indicates that "[t]hose at particular ongoing risk of torture include Tamils with a real or perceived association with the Liberation Tigers of Tamil Eelam (LTTE) at any level and whether current or historic" (Freedom from Torture, 13 August 2015, p. 9). The report further provides the following information on the investigated torture cases:

"The profile factor - other than ethnicity - that was reported by the vast majority of people to have led to detention and torture by state authorities was an actual or perceived association with the LTTE. Of the 148 people, 142 described an association with the LTTE at some level and/or said that they had been associated with the LTTE by the Sri Lankan authorities in some way (96% of all cases). The LTTE association related directly to themselves or to members of their family, or to both [...]. For some people the association was real and for others it was wrongly imputed to them by the authorities. Either way, this was the key factor that reportedly led to their eventual detention on one occasion or more.

[...] These cases demonstrate that ordinary people of Tamil ethnicity with links to the LTTE - even where these links were minimal or at a relatively low level - as well as those for whom such links were merely suspected or were completely false, were detained and tortured and that the detention of people with these profiles has continued well into the post-conflict period." (Freedom from Torture, 13 August 2015, p. 19)

1. The applicant observed that the IAA had accepted that, in his capacity as a TELO member, the applicant had participated in LTTE organised events (at [25]). However, the IAA had not been satisfied that the applicant had drawn adverse attention from the authorities in result. At [70]-[71], the IAA considered:
   1. I have taken into account that allegations of torture or mistreatment of returnees have been raised by observers including the Human Rights Watch (HRW), the International Truth and Justice Project (ITJP), Freedom from Torture (FFT) and others. The review material, including country information and reports provided by the applicant's agent after the PV interview, contain a number of reports from 2015 of Tamils being detained on arrival in Sri Lanka, which indicate that those arrested were mostly known former LTTE members.43 The applicant's agent also provided new reports of specific deportees having been arrested upon return to Sri Lanka. I note the Human Rights Watch (HRW) had made various calls in 2012 for the UK to halt deportation of all failed Sri Lankan asylum seekers, which was supported by reports on torture of returnees made around that time by Tamils Against Genocide (TAG) and Freedom from Torture.44 Having also considered the recent May 2016 Freedom from Torture (FFT) report45, I note from the accounts of claims made in these reports that nearly all cases appear to have involved accusations of specific LTTE involvement or links rather than the victim being singled out as a failed Tamil asylum seeker. The most recent FFT report similarly noted that in the majority of cases the victims had an actual or suspected LTTE connection or links to separatist activities. I note that the January 2016 report by International Truth and Justice Project (ITJP) Sri Lanka46, which is based on sworn statements and interviews with 26 Sri Lankan Tamils, concludes that, based on those cases, Tamils with 'tenuous' links to the LTTE or low-level cadres continue to be targeted. I also note that similar concerns were raised in the 2016 Committee Against Torture (CAT) report 2016 provided by the applicant's agent, which report referred to complaints of torture from individuals with even remote LTTE links. However, I do not consider these reported incidents and claims to be informative of the circumstances that would or could be faced by the applicant upon return.
   2. Having considered the information before me, I am not satisfied that they support a finding that the applicant, being a returning asylum seeker will be mistreated or tortured upon his return to Sri Lanka. I am not satisfied that the applicant has a profile that would place him at risk of mistreatment upon return to Sri Lanka. The applicant does not have an actual LTTE connection and I am not satisfied that he would be suspected of or perceived to have any LTTE association or links to separatist activities either because his past involvement in TELO/TNA and his attendance, as a TELO member, in LTTE celebrations and events during the ceasefire period. Nor do I consider that the applicant's Facebook activities since arriving to Australia to be such that they can be perceived as post-conflict Tamil separatist activities, and there is no evidence that the applicant has participated in any pro-LTTE separatist activities whilst abroad/ and there is no basis in the information before me upon which he would be suspected of having engaged in such activities. Having considered the applicant's profile, I have found that he was not a person of adverse interest to authorities for any reasons when he left the country. The information before me does not support that Tamils who have lived abroad face a real chance of harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to their absence from Sri Lanka or for being a returning asylum seeker. Further, I do not consider that the weight of country information supports a conclusion that asylum seekers are being tortured when returned to Sri Lanka.
2. The Minister submitted that there was substantial overlap between the extract relied upon by the applicant and material that was otherwise before the IAA. The Minister observed that before the IAA was a subsequent Freedom from Torture Report that included information from the earlier report: affidavit of Sivarama Valliappan dated 17 June 2025 (Valliappan 1) at PDF 138. The subsequent report stated that the majority of the interviewees in the earlier report had described an association with the LTTE "at some level and/or said they had been associated with the LTTE by the Sri Lankan authorities in some way", "either directly or through family or other associates' involvement or both". The Minister submitted that the phrases "at some level" or "in some way" necessarily included links that were "minimal or at a relatively low level". The Minister observed that the report before the IAA also referred to the risks occurring "[r]egardless of whether this association was real or wrongly imputed to them" and indicated that this was a "pattern that appears to continue long after the end of the civil war".
3. The Minister also relied upon another country information report that was before the IAA, by the International Truth & Justice Project, stating that "Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families" (Valliappan 1 at PDF 149), as well as a report from another organisation stating that "individuals suspected of having a link, even remote" with the LTTE had been abducted and harmed (CB 239).
4. I am unable to accept the Minister's submission that the overlap between the reports was such that any difference between them in this regard was immaterial. As the applicant submitted, the language used in the ACCORD Report at least potentially suggested a greater risk than other sources relied upon by the IAA. I do not accept that references to links "at some level" or "in some way" necessarily conveyed the information that people with links that were "minimal or at a relatively low level" had been detained and tortured well into the post-conflict period. The former is imprecise - it does not specify the extent of the links in question. The latter does - specifying the inclusion of "minimal" or "relatively low level" links. Although there may be some conceptual overlap between the latter terminology and the words "tenuous" or "remote", they are not identical. Even if these concepts are substantially the same, a further report or source emphasising the limited level of association with the LTTE that had been known to have attracted harm may have affected the IAA's assessment of whether the applicant may face harm on this basis.
5. In circumstances where the IAA accepted that the applicant had attended LTTE organised events and may have had some (limited) association with the LTTE, it is possible, realistically, that this country information may have impacted upon the conclusions reached by the IAA if it had been considered. It is also possible that it would not have. Ultimately, that evaluation was a matter for the IAA.
6. For the above reasons, I accept that materiality has been demonstrated in relation to this example.

1. The ACCORD report references the following (CB 517-518):

... According to the research, "torture did not end when the fighting stopped. Rather, torture - including rape and other forms of sexual torture and extensive burning - remains integral to the machinery of repression in Sri Lanka and continues to be perpetrated with impunity" (Freedom from Torture, 13 August 2015, p. 9). Regarding the change of presidency in January 2015, Freedom of Torture "cautions against any assumption that torture in the country has stopped or even reduced as a consequence". The organisation states that "[w]e know from our clinical experience of working with Sri Lankan torture survivors over decades that torture is an entrenched part of the state apparatus in Sri Lanka, enduring under successive political leaders" (Freedom from Torture, 13 August 2015, p. 15).

(Emphasis added)

1. The ACCORD report (at CB 530-531) also contained extracts from a "Joint Alternative Report to the Committee Against Torture" published by "a Sri Lankan NGO Collective" in October 2016 "in which the claim of the government that the reported number of incidents of torture have significantly decreased is "vehemently rejected". A claim is made in the extracts from the Joint Alternative Report that "false and misleading" information had been provided in this regard.
2. The Minister observed that at [61] of its decision, the IAA considered a range of sources regarding the continuing prevalence of torture in Sri Lanka, including sources from after the election of the Sirisena government in January 2015. The Minister acknowledged that, at [62], the IAA relied upon information indicating that the number of human rights violations in Sri Lanka had decreased, with much lower complaints of torture. The Minister acknowledged that this was, obviously, in contradistinction to the information in the sources relied upon by the applicant in the ACCORD Report, particularly in the Joint Alternative Report. However, the Minister submitted that in circumstances where the IAA plainly considered other sources indicating that abuses did continue under Sirisena, it could not be concluded that an additional source to that effect could have made a difference.
3. I am unable to accept the Minister's submission. Although other country information indicated (and the IAA accepted) that human rights abuses (including torture) continued in Sri Lanka, the IAA relied upon country information indicating that the incidence of this had significantly decreased. Country information that, at least potentially, cast doubt upon this proposition could, at least potentially, have realistically affected the outcome of the IAA's decision.

1. Having regard to the above, I have found that the error made by the IAA was material. I have accordingly found that the IAA's decision was affected by jurisdictional error. The application before the Court therefore succeeds.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.