AZV18 v Minister for Immigration & Citizenship
[2025] FedCFamC2G 788
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZV18 v Minister for Immigration & Citizenship [2025] FedCFamC2G 788
File number(s): MLG 538 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 30 May 2025 Catchwords: MIGRATION LAW – application for judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track review – claims relating to family’s involvement in Liberation Tigers of Tamil Eelam activities, family being imputed with a pro-LTTE political opinion and harassment by Sri Lankan officials – IAA’s findings were reasonably open to it – application dismissed with costs Legislation: Migration Act (1958) Cth s2 5H, 5J, 36, 473DB, 473DC, 473DD
Migration Regulations 1994 (Cth) regs 790.21 and 790.22
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; [2020] 269 CLR 439
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; [2020] 269 CLR 494
AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
FRZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 107
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; [2001] 206 CLR 323
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 6 March 2025 Date of hearing: 6 March 2025 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Ambi Associates Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 538 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZV18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.The Application filed 2 March 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
3.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BINGHAM
By an application filed in this Court on 2 March 2018 and amended 13 February 2025 (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).
On 6 February 2018 the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Subclass XE-790) (Safe Haven Enterprise) Visa (Protection Visa) (IAA’s Decision).
BACKGROUND
The Applicant is a Hindu Tamil from Batticaloa in the eastern province of Sri Lanka. He arrived in Australia as an irregular maritime arrival. The Department conducted an entry interview with the Applicant on 24 October 2012.
On 8 December 2015 an invitation to apply for a protection visa under the fast-track assessment process was sent to the Applicant by post. On 11 January 2016 a request for an extension of time was sent to the Department from the Applicant’s solicitor. The Department explained that the Applicant was within the prescribed time of 60 days and the application was not due until 15 February 2016.
The application for a protection visa lodged on 1 September 2016 was received by the Department on 2 September 2016 (Visa Application). On 1 February 2017 a request to attend an interview on 15 February 2017 was sent to the Applicant’s solicitor. A second request to attend an interview on 27 April 2017 was sent on 6 April 2017. Interviews with the Applicant were held on 15 February 2017 and 27 April 2017 (SHEV Interviews).
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]
[1] Migration Regulations 1994 (Cth) regs 790.21 and 790.22.
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).
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
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.
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.
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.
The Applicant’s protection claims were as follows.
(a)His Father was a wealthy paddy farmer who assisted the Liberation Tigers of Tamil Eelam (LTTE) with food and rations, and later with cash donations to avoid his sons being recruited.
(b)His father came to the attention of the Sri Lankan government for his support of the LTTE, and he left for Saudi Arabia in 2000.
(c)The LTTE demanded his family use their farming vehicles to transport goods and weapons, and his brother complied to avoid conscription.
(d)The whole family was imputed with a pro-LTTE political opinion.
(e)His father was kidnapped when he returned to Batticaloa and has not been seen or heard from since despite his family making many attempts for assistance to help locate him from police, politicians, religious groups and the head of the district office.
(f)His family began receiving threats from unknown people in 2008 and his family were interrogated by the Criminal Investigation Board where on one occasion he was assaulted and asked to withdraw any complaint about his father’s disappearance.
(g)His mother made a complaint to the missing persons commission in Sri Lanka and received a recommendation that she be considered for payment of compensation. The mother refused.
(h)His mother had visits from Sri Lankan officials twice a week seeking information about her sons.
(i)He will be targeted by Sri Lankan officials if he returns to Sri Lanka on the basis of his mother’s complaints and family’s support of the LTTE.
Delegate’s Decision
On 19 May 2017 the Delegate refused to grant the Visa (Delegate’s Decision). With respect to the claims regarding the persistent attention his mother allegedly received since reporting the father’s disappearance, the Delegate accepted that part of the claim was plausible. However, due to the extended period of time being five (5) years since the Applicant had left Sri Lanka, the Delegate was not satisfied that Sri Lankan officials continue to visit the mother’s home twice a week.
The Delegate was not satisfied that sufficient information regarding his brother’s departure following the alleged threats was provided to the Department for consideration. It found that the Applicant’s claims with respect to his brother’s involvement with the LTTE lacked consistency and plausible detail.
The Delegate found that the Applicant had fabricated incidents to augment his protection claims. It was not accepted that the Applicant fled to Sri Lanka due to fears of persecution.
The Delegate refused to grant the Applicant a Protection Visa on the basis that he did not satisfy the criterion in the Migration Act and Australia did not owe him protection obligations.
The Delegate’s Decision was referred to the IAA on 24 May 2017. A direction under s 473FB of the Migration Act setting out the requirements for dealing with the IAA was sent to the Applicant.
On 14 June 2017 the Applicant’s representative sent written submissions to the IAA which included a statement from the Applicant for its consideration.
THE IAA’S DECISION
On 6 February 2018 the IAA decided to affirm the Delegate’s Decision.
Having considered all of the evidence provided by the Applicant with respect to the harassment he claimed his family had endured, the IAA was not convinced that the Applicant had been truthful and concluded that he had invented and exaggerated some claims with a view to strengthening his protection claims.
Similar findings of exaggeration and fabrication were made with respect to the claims regarding the brother’s involvement in LTTE activities, the interrogations and harassment preventing them from finding employment and that he was followed by white vans before going into hiding.
The IAA noted that the Delegate made an assessment of whether the Applicant would face any risk of harm on returning to Sri Lanka arising from his status or his family’s wealth despite the Applicant not putting forward these claims.
The IAA held that the Applicant would not face a real chance of harm if he returned to the Eastern Province in Sri Lanka for any of the reasons submitted by the Applicant.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 2 March 2018, within 35 days of the date of the IAA’s Decision pursuant to s 477 of the Migration Act.
This matter was heard on 6 March 2025 and proceeded in person (Hearing). The Applicant was represented by Counsel. A Solicitor appeared on behalf of the Minister.
The Applicant relied upon the following documents:
(a)The amended Application filed on 13 February 2025;
(b)The Outline of Submissions filed on 13 February 2025; and
(c)The List of Authorities filed on 28 February 2025.
The Minister relied upon:
(a)The Response filed 22 March 2018;
(b)The Outline of Submissions filed on 20 February 2025; and
(c)The List of Authorities filed on 20 February 2025.
The Court has before it a Court Book filed by the Minister on 19 February 2019 and a Supplementary Court Book filed by the Applicant on 14 February 2025.
The amended Application contained a total of 19 grounds of review under three (3) general headings in many of cases the grounds of review were repetitive. The Applicant abandoned Ground 2(b) in his written submissions. At times the grounds of review pressed orally at the Hearing differed from the written submissions of the Applicant and the Amended Application. Where Counsel for the Applicant diverged from the written material the Solicitor for the Minister ably addressed these issues. The Applicant would be better served if Counsel’s duty to assist the Court was carried out by “simplification and concentration”[2] of the grounds of review.
[2] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, [441]
The three (3) general headings for the grounds of review are:
(a)The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
(b)The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
(c)The Authority fell into jurisdictional error in that it did not have a logically probative basis for findings or was otherwise legally unreasonable.
CONSIDERATION
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.
The IAA is given material from the secretary under s 473CB of the Migration Act. 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.
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.
Grounds 1(a), 2(a) and 3(a)
In oral submissions Counsel for the Applicant proceeded to deal with Grounds 1(a), 2(a) and 3(a) as particular 1(a) was also traversed in particulars 2(a) and 3(a). The argument put by Counsel for the Applicant in oral submissions differed to the argument contained in written submissions.
The Applicant at the Hearing did not take issue with the IAA’s application of s 473DD to the information submitted to it by the Applicant. It was conceded that country information has been held not to be credible personal information and some material put before the IAA was dated before the Delegate’s Decision.
It was submitted on behalf of the Applicant that the IAA, when considering whether there were exceptional circumstances could utilise s 473DC(1)(b) to obtain the information itself. It was submitted that there is a tension between s 473DC and s 473DD in that if the Applicant makes the IAA aware of material regardless of whether that information did not meet s 473DD(b)(i) or (ii) the IAA could still use its power under s 473DC(1)(b) to bring the information before it. Counsel was unaware of any authority that supported this submission.
In addressing the novel argument put by Counsel for the Applicant with respect to the application of s 473DC Counsel for the Minister submitted that s 473DC gave the IAA a broad discretion to accept the information but in this case the IAA did not accept that there were exceptional circumstances to consider new information and therefore there was no reason to consider whether it should have sought the information itself. Counsel further submitted that if the IAA were to exercise its discretion under s 473DC to get information for itself that information is still new information that needs to pass through the filter of s 473DD[3] in that there is a requirement that the IAA needs to be satisfied that there are exceptional circumstances to consider the information.
[3] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; [2020] 269 CLR 494.
At paragraph [3] dot points two and three of the IAA’s Decision there are clear findings that there were no exceptional circumstances to justify the IAA considering the new information. The Minister submitted that the Applicant did not address the fact that there were definitive findings on the exceptional circumstances in the IAA’s Decision and that the whole basis of the Applicant’s submission on this issue is he disagreed with the IAA’s Decision and was for all intents and purposes seeking a merits review.
I agree with the submission of the Minister. The Applicant has failed to identify a jurisdictional error. Grounds 1(a), 2(a) and 3(a) must be dismissed.
Ground 1(b)
This ground was characterised by Counsel for the Applicant as a complaint about the IAA not having regard, in a way required by law, to information relevant to the question of treatment of the Applicant in prison or detention immediately on return.
The whole basis for this ground is that an inference should be drawn that the IAA did not engage with those parts of the 2017 DFAT Report[4] relating to the issue of torture and abuse. It was submitted that I should draw such an inference on the basis that the IAA referred in detail to other parts of that report and did not do so with respect to those parts of the report relating to torture and abuse.
[4] The Supplementary Court Book filed by the Applicant contains the Department of Foreign Affairs and Trade “Sri Lanka – Country Information Report” dated 24 January 2017.
Counsel for the Applicant submitted that I should arrive at the inference and suggested what the IAA had to note in its decision was that the material from DFAT was not simple and did not point in one direction. Plaintiff M1/2021 v Minister for Home Affairs(Plaintiff M1)[5] was relied upon for this proposition. Counsel did concede that Plaintiff M1 did not require the IAA to note all the evidence or all the parts of a repot or representation. Counsel then relied on Minister for Immigration and Multicultural Affairs v Yusuf[6] submitting that because the IAA has to give written statements of reasons and it has to include in its findings material questions of fact and refer to the evidence on which those findings are based and that it is open on a fair reading of the decision the IAA that an inference could be drawn that it did not engage with the report with the correct level of engagement. I was encouraged to draw the inference from what was not said.
[5] [2022] HCA 17.
[6] [2001] HCA 30; [2001] 206 CLR 323.
The findings with respect to the treatment the Applicant would be subjected to on return to Sri Lanka are found at paragraphs [55], [57], [58], [63] and [64] of the IAA’s Decision.
The Applicant in his written submissions includes extracts from the 2017 DFAT Report. The Minister submitted that these paragraphs of the report relate to torture perpetuated by the Sri Lankan military, intelligence services and police in relation to criminal investigations in particular when there is a perceived threat to national security. Paragraph [4.21] and [4.22] of the 2017 DFAT Report are found under a subheading “Torture and mistreatment of returnees”.[7] The Applicant was assessed as a failed asylum seeker who illegally departed Sri Lanka. It is clear to me that the IAA appropriately considered that part of the 2017 DFAT Report regarding torture and only referred to that part of the report, reference is made in footnote 13[8] to paragraph [4.22] relevant to its findings.[9]
[7] Supplementary Court Book 30.
[8] IAA’s Decision, [55].
[9] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323.; FRZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 107.
The Applicant has not identified a jurisdictional error. Ground 1(b) must be dismissed.
Ground 1(c)
Ground 1(c) concerned the manner in which the Applicant’s psychological report[10] was treated by the IAA. There was very little elaboration on this ground in the written submissions. The crux of the Applicant’s is the IAA ‘noted” at paragraph [10] but did not engage with the psychological vulnerability of the Applicant and that in particular didn’t consider how it might perhaps have affected the ability of the Applicant to recall accurately the traumatic events and period of his life including the disappearance of his father.
[10] Court Book 131.
Counsel for the Applicant took me to paragraphs [21] to [45] of the IAA’s Decision where the IAA found that the Applicant was not to be credible referring to differences between the statement in support of his Visa Application and the things that were said by him during his SHEV Interviews. Counsel for the Applicant submitted that, from those paragraphs, the inconsistencies in the Applicant’s evidence identified by the IAA pertain to the Applicant raising new claims in his SHEV Interviews which had not been mentioned in the statement accompanying his Visa Application.
The psychological report was taken into account by the IAA. The report is clearly mentioned in paragraph [10] of the IAA’s Decision. There was no diagnosis or prognosis in the report. There is a reference in the report to a referral for suspected depression and PSTD. There is nothing in the report that would indicate that the Applicant had a failing memory because of some psychological condition which may give rise to an explanation for his ability to recall events or inconsistencies in his evidence.
I am of the view that the findings of the IAA regarding the inconsistencies in the Applicant’s evidence was open to it.
The Applicant has not identified a jurisdictional error. Ground 1(c) must be dismissed.
Ground 1(d)
It was submitted by Counsel for the Applicant that when assessing the inconsistencies in the Applicant’s evidence the IAA did not note or consider the effluxion of time between the making to the statement supporting the Visa Application being eight (8) years after the disappearance of his father and the SHEV Interviews which took place nine (9) years after the disappearance.
This ground was not expanded on in the Applicant’s written submissions and was not developed in any substance in oral submissions other than to say that if the effluxion of time had been considered the IAA may have come to a different conclusion.
The Minister submitted that the IAA relied upon the fact that significant claims were raised at the SHEV Interviews and had not been raised in the supporting statement for the Visa. It was further submitted that there was no obvious basis on which the passage of time explained the omission of the claims in the written statement which were later raised in the SHEV Interviews.
I agree with the submissions of the Minister the IAA was not required to consider the effluxion of time in circumstances where there was no clear basis to arrive at a conclusion that it was the effluxion of time that caused the omission of the claims.
The Applicant has not identified a jurisdictional error. Ground 1(d) is dismissed.
Ground 2(c)
The Applicant contended that it was legally unreasonable for the IAA to not seek new information and exercise its power under s 473DC. More specifically, it was contended that the Applicant ought to have been invited to an interview. The manner in which this ground was argued at the Hearing was different to the way it had been expressed in the Applicant’s written submissions.
Counsel for the Applicant submitted that where Delegate had general acceptance of credibility but the IAA had a different assessment of that credibility based on the recording of the interview the IAA should have ‘seen’ the Applicant as this was a circumstance where credibility looms very large. The Applicant relied upon ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 (ABT17).
The Minister submitted that the reliance by the Applicant on ABT17 is misplaced as the Delegate in ABT17 accepted claims rejected by the IAA and the IAA rejected those claims on the basis of the assessment of the Applicant’s demeanour where there was only an audio recording available to the IAA.
Counsel for the Minister accepted that the claims about support provided by the Applicant’s two brothers to the LTTE were accepted by the Delegate but not by the IAA and that there was some discrepancy in what was accepted by the Delegate and what was accepted by the IAA. It was further submitted neither the Delegate nor the IAA made the findings on the Applicant’s demeanour in the SHEV Interviews. There was no mention by either the Delegate or the IAA that account was being taken of the Applicant’s demeanour: AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983 at [86] to [90]. I agree with the Minister’s submission that the Applicant’s reliance on ABT17 is misplaced as there is no evidence that the demeanour of the Applicant was taken into account when arriving at its findings.
The Applicant has not identified a jurisdictional error with respect to this ground. Ground 2(c) must be dismissed.
Ground 3(b)
Ground 3(b) alleges that the IAA had no sufficient logical foundation or was unreasonable in making a series of findings set out in paragraphs [40(i)] to [40(vii)] of the Applicant’s written submissions.
It was also submitted that the inconsistencies observed in the evidence were minor or explicable by the vulnerability of the Applicant and the time between the events and evidence.
With respect to the series of finding referred to in the Applicant’s submissions the Minister submitted that the Applicant was asking the Court to assess the evidence before the IAA and come to a different conclusion. I accept this submission the Applicant was for all intents and purposes seeking a merits review. The IAA’s findings were reasonably open to it.
With respect to the inconsistencies that were observed, it was conceded by the Minister that the some of the inconsistencies could be described as minor but that this was not the case with respect to the findings challenged by the Applicant under this ground. It was submitted that the findings at paragraph [32] to [45] of the IAA’s Decision were based on the fact that significant claims were raised for the first time at the SHEV Interviews. It was open to the IAA to concluded that the new claims were an invention of the Applicant. I accept these submissions.
I agree with the Minister that what is actually being sought by the Applicant is a reassessment by this Court of the credibility of the Applicant’s claims and evidence.
This ground must be dismissed.
Grounds 3(c), (d) and (e)
Grounds 3(c), (d) and (e) concern adverse credibility findings that the Applicant contended were made without a logically probative basis.
Grounds (c) and (d) repeat the complaint that the Applicant was not invited by the IAA to an interview raised in Ground 2(c). Again the Applicant placed reliance on ABT17. I do not accept that there has been a jurisdictional error identified by the Applicant with respect to this ground for the reasons set out under the heading ‘Ground 2(c)’.
With respect to Ground 3(e) the Applicant contended that it was unreasonable to make adverse findings without considering the Applicant’s vulnerability and the effluxion of time between the events and the giving of his evidence. I reject this ground for the reasons set out under the headings ‘Ground 1(c)’ and ‘Ground 1(d)’.
With respect to Ground 3(f) it is alleged that it was unreasonable not to find a chance or real risk that the Applicant while in prison or detention immediately on his return to Sri Lanka may suffer serious or significant harm by assault or torture because of the general culture of violence and torture of those in detention or prison. I reject this ground for those reasons set out under the heading ‘Ground 1(b)’.
CONCLUSION
The Application for judicial review by the Applicant is dismissed.
The Minister sought costs fixed in the amount of $8,371.30, which is 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 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $8,371.30.
Orders will be made accordingly.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 30 May 2025
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