EOT18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1777

1. By the Third Further Amended Application, the applicant raises the following three grounds of review (particulars omitted):

Ground 4

The IAA erred when it did not accept the Applicant was a member of the LTTE, an intelligence officer, or that he undertook weapons training.

Ground 5

The IAA erred when it was not satisfied the applicant faces a real chance of harm for any reason associated with his mental state.

Ground 6

The IAA erred when it did not accept the Applicant was a member of the LTTE, an intelligence officer or that he undertook weapons training, and also when it was not satisfied that the applicant has been, or will now be, suspected of being a member or former member of the LTTE, such findings being unreasonable irrational and illogical amounting to jurisdictional errors.

1. Despite having been numbered as grounds 4, 5 and 6 (by reason of the abandonment of previously raised grounds), it is convenient to re-number them as grounds 1 to 3.

1. Ground 1 contends that the Authority erred by not accepting the applicant was a member of the LTTE, an intelligence officer, or that he undertook weapons training.
2. The particulars to ground 1 are lengthy and, essentially, allege that in reaching its conclusions at [20] to [21] (CB 295) and [45] to [46] (CB 300), the Authority failed to properly consider that a person suffering from the mental conditions as diagnosed by the psychologist (CB 238) could not have rationally explained:[1]

(a) why he did not discuss such an allegedly significant profile (namely, being actively involved with the LTTE) with his migration agent;

(b) why he didn't make all of his claims and provide complete and accurate evidence to the delegate;

(c) why the claims made to the psychologist were not raised until after the delegate made their decision; and

(d) whether it may have been true that the applicant had been too scared to tell the Australian authorities about his history with the LTTE because he thought this may impact adversely on his protection claims.

1. The first respondent says that the matters alleged in respect of his LTTE involvement, which are said to have been overlooked by the Authority, amount to claims made after the fact.
2. As to the impact of the psychologist's report, the first respondent contends that no such claim (namely that the applicant's failure to make certain claims early was by reasons of his mental issues) was articulated by the applicant, or arises on the face of the psychologist's report.
3. The first respondent says that while the Authority considered it plausible that a person involved in the LTTE may be concerned about disclosing that fact in circumstances where the claims to the psychologist were raised after the delegate's decision, where applicant was being assisted by an experienced migration agent and that the delegate had put the applicant on notice that he should make all of his claims, it did not accept the applicant's explanation for not having raised the claims at an earlier time and found the applicant had embellished that part of his new claim to address the concerns raised by the delegate (CB 295 at [22]).

1. The applicant relies on [22] of the Authority's reasons in respect of this ground, by which the Authority did not accept that the applicant was:

(a) a member of the LTTE;

(b) an intelligence officer; or

(c) that he undertook weapons training.

1. This aspect of the ground is, in truth, an attempt at impermissible merits review and does not give rise to the error alleged.
2. The balance of the ground, refers to the psychologist's report and asserts that the Authority failed to consider the effect of the applicant's mental health (as documented by the report) in respect of particular issues the Authority identified at paragraph [21] of the decision, namely his failure to raise particular issues with his agent, which the Authority considered to cast doubt on the claims about LTTE being true.
3. It is well‐established that whether a claim not expressly advanced must be considered will depend upon the facts of an individual case, but should not "depend for its exposure on constructive or creative activity": see NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 at [58] per Black CJ, French and Selway JJ. An unarticulated claim should "arise tolerably clearly from the material itself": see NAVK v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] per Allsop J (as his Honour then was) and Minister for Immigration & Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70] per Mansfield, Gilmour and Foster JJ.
4. The first respondent says the allegation in ground 1 cannot be established because no such claim was expressly made by the report nor does it squarely arise from that report. The first respondent says that, if the purpose of the psychologist's report was to explain that there was a clinical basis for deficiencies or non-disclosures in the past, it would not have been difficult for the report to do so expressly. The first respondent submits that, instead, the report did not make any submission made to the Authority indicating the applicant was seeking to use that report to make that explanation. I accept those submissions.
5. Further, the applicant did not claim (nor was it ever suggested) that the reason he failed to disclose his alleged LTTE involvement at an early stage, including to the delegate, was because he had forgotten to do so, or that he was impaired in some way. Rather, the applicant explained that he consciously chose not to do so because he was scared. The first respondent says this was a conscious election on his part and not an aspect of his condition which the psychologist's considered to be symptomatic.
6. In my view, the Authority was not in error for failing to derive something from the psychologist's report which was simply not there.
7. I accept the submissions of the first respondent that the purpose of the psychologist's report was not particularly explained, but that it was certainly not advanced for the purpose which the applicant now characterises. The report was presented to the Authority without any contention as to what the the Authority should make of it, and there is nothing contained within the report which squarely raises it being advanced to explain the applicant's decision not to earlier raised his claims, in the manner understood as being an error of the kind identified in NABE (supra) or at all.
8. The Authority otherwise did take account the information before it about the applicant's non-disclosure, which it had already addressed at [21] of its reasons for decision.
9. Overall, I am not satisfied that ground 1 is made out.

1. By ground 2, the applicant alleges the Authority erred by not reaching the requisite level of satisfaction that he faced a real chance of harm for any reason associated with his mental state.
2. Specifically, by particular (iv) to this ground, the applicant says the Authority failed to take into account that he had stopped receiving treatment once had obtained employment (CB 300 at [44]), and that his symptoms were alleviated once he reached Australia as he felt safe from further threats of harm and was "distracted" by his job (CB 233). In those circumstances, the applicant says the Authority failed to consider the relevant questions which arise under s 5J(1)(a) and 36(2A) of the Act.
3. The first respondent says that the ground should fail on the face of the comprehensive reasons furnished by the Authority, in which it plainly considered whether as a result of his mental health, the applicant would face a real chance of serious harm if returned to Sri Lanka (CB 300 at [43] to [46]). The first respondent says the Authority's conclusion was open to it on the evidence before it.

1. The error as expressed by the applicant is an assertion that the Authority failed to consider relevant statutory questions. However, the ground as it was addressed in submissions takes on a different import.
2. To the extent the applicant contends the Authority failed to properly apply the requisite criteria, I reject that assertion. A contextual review of the Authority's reasons for decision reveals that it did ask itself the correct questions.
3. The alleged error (as was elucidated by the applicant in submissions and at hearing before me) is that the Authority overlooked particular parts of the psychologist's report concerning questions of treatment.
4. The applicant again seeks to rely on the psychologist's report to assert error in a way which, frankly, is simply not borne out by the report. When the Authority did consider the applicant's mental health, that consideration was true to the content report in terms of the matters it addressed, and which could reasonably be derived therefrom. There was no salient aspect of the report which was overlooked in the Authority's findings at [44] to [46]. Each of the Authority's conclusions was open to it on the face of the psychologist's report, even if a different decision maker might have reasoned or concluded differently. The Authority acknowledged that the report said the applicant would benefit from participating in psychological treatment to address his symptoms and that the applicant had not claimed to be undergoing any treatment or to be on any medication. None of the Authority's conclusions, drawn from the psychologist's report, constitute a failure to ask itself the correct question. I am satisfied that the Authority was aware of the content and significance of the psychologist's report in terms of the applicant's symptoms and treatment prospects.
5. To the extent that the applicant also suggests that the purpose of the report might have gone to demonstrate the applicant's claims were true, this does not in context inform any error. Firstly, the psychologist was only able to recount that which the applicant had self-reported to them. The report was not corroborative in any other sense. In any event, the Authority accepted the applicant had encountered mistreatment in the past and did not reject may of the applicant's claimed experiences. It also did not find that the applicant did not have a genuine, subjective fear of returning to Sri Lanka. I accept the submission of the first respondent that there is no disharmony or lack of logic between the facts, as the Authority found them, and the psychologist's diagnosis of symptoms which might arise from someone who has experienced traumatic experiences in the past.
6. There is no error as alleged by ground 2.

1. By ground 3, the applicant alleges the Authority erred by not accepting that the applicant was a member of the LTTE, an intelligence officer or that he undertook weapons training, and in not being satisfied that the applicant has been, or will now be, suspected of being a member or former member of the LTTE.
2. The ground takes particular issue with the Authority's findings at CB 295 to 296, that:

(a) "[the applicant] has not claimed that he was ever arrested" (at [19]); and

(b) "he has not claimed to have been accused of specific support activities or confronted with specific allegations of supporting the LTTE" (at [23]).

1. The applicant contends that these conclusions are contrary to the following claims made by him which "clearly indicate" that he was confronted with specific allegations concerning his involvement with the LTTE, namely that the applicant was:

(a) arrested in 2009 (CB 160 at [7]); and

(b) harassed and tortured by the CID because of his association with the LTTE (CB 161 at [13] to [14]).

1. The applicant says the Authority's findings at [22] to [23] of its decision reveal a misunderstanding on its part in respect of the material before it, a failure to engage in an active intellectual process, and/or that it arrived at an irrational, illogical or unreasonable conclusion.
2. The first respondent submitted that the ground does not present the relevant findings of the Authority in their proper context. The first respondent also says it is necessary to place the findings of the Authority the subject of this ground, in their proper context. Specifically, in relation to the applicant's contention that the Authority's statement at [22] (CB 295) (in relation to the applicant having not been arrested) is inconsistent with his claim set out at [63(a)] above, the Minister submitted that no such observation is present in the relevant paragraph. Rather, at [19] of its decision, the Authority observed that:

He has not claimed that he was ever arrested, taken to a detention centre or rehabilitation camp, or subjected to monitoring or surveillance as a result of these incidents.

1. The first respondent says that the reference to "these incidents" at [19] is clearly in relation to the incidents discussed in the preceding three sentences of that paragraph, which all pertained to events that the Authority accepted occurred prior to 2009, and that the Authority understood (and accepted), that the applicant claimed to have been arrested in 2009 (CB 297 at [28] to [29]).
2. In relation to the applicant's contention that the Authority misunderstood his claim (CB 161 at [13]), the first respondent says that this aspect of the ground is also misguided. Specifically, the first respondent submitted that the Authority's conclusion the applicant had not claimed to have been accused of specific support activities (CB 296 at [23]) is, in actuality, consistent with a fair reading of (CB 161 at [13]), which rises no higher than the CID apparently believing that the applicant knew where the LTTE buried weapons, and that he was perceived to be a LTTE cadre or supporter because of his frequenting jungle areas controlled by the LTTE. The first respondent says those were claims to have been perceived to have knowledge of operations or, at their highest, to have provided tacit support of the LTTE.

1. Assessment of this ground also requires a contextual reading of the Authority's reasons, specifically paragraphs [19] and [23]. In doing so, it is tolerably clear that the Authority did not make any error in logic or rationality in reaching its ultimate conclusion at [23].
2. In terms of the applicant's claim to have been arrested, at paragraph [14] the Authority set out the claims of the applicant and it expressly recognised (CB 293 to 294) that (emphasis added):

In 2009 (then entry interview states 2007 but the applicant has otherwise been consistent with the date, and I accept that it was 2009), the applicant was returning home when a Navy truck was destroyed by a bomb. The authorities arrested six Tamils including the applicant, who were in the area of the blast. Three of the Tamils were killed by the authorities and the applicant and the others were taken for questioning. The applicant was detained for three days, interrogated and physically assaulted. He suffered an injury to his ear which left him deaf on that side.

1. The Authority did not make any finding that the applicant had not been arrested. Rather, at [19] it found (emphasis added):

The applicant claims, and I am prepared to accept, that his family was displaced during the conflict and resided at different times in IDP camps and a UNHCR camp. He also claims, and I accept, that prior to 2009 (i.e. during the conflict), he was regularly targeted by the authorities because he was a young Tamil male. He was interrogated and physically and verbally assaulted while travelling on the streets. He has not claimed that he was ever arrested, taken to a detention centre or rehabilitation camp, or subjected to monitoring or surveillance as a result of these incidents.

1. The Authority was highlighting that, while it accepted that the applicant had experienced mistreatment at different times in his past, those incidents were not ones in which he was targeted for particular reasons he claimed. Further, the applicant did not make any claim that his specific activities were known to Sri Lankan authorities. Rather, he claimed that the Sri Lankan authorities were suspicious of him for other reasons including (CB 297):

(a) the 2009 incident where the applicant was arrested which was addressed at [28];

(b) the 2011 harassment issue in which the applicant claimed to have been targeted by the CID, which was addressed at [30] and [31]; and

(c) and that it was plausible, that as a young Tamil male, travelling regularly to jungle areas, the CID may have believed that the applicant knew of LTTE caches at [31].

1. These incidents are excluded from the Authority's finding at [23], at which the applicant takes aim. To do so mis-contextualises and misconstrues the Authority's findings.
2. Overall, I am not satisfied that the Authority either overlooked or irrationally considered, the claims in question.
3. There is no error as alleged.

1. The applicant has failed to establish error as alleged, or at all. Absent a jurisdictional error the decision of the Authority is a privative clause decision and must be dismissed. I will so order.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.