AZW18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1437
•3 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZW18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1437
File number: MLG 536 of 2018 Judgment of: JUDGE RILEY Date of judgment: 3 September 2025 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority failed to take into account the outcome of its assessment under s.473DD(b)(i) of the Migration Act 1958 (“the Act”) in its assessment under s.473DD(a) of the Act - whether the Authority’s assessment under s.473DD(a) of the Act was irrational or illogical – whether the Authority asked the wrong question under s.473DD(a) of the Act – whether the Authority’s finding that the applicant was not a spy for the LTTE, but that he merely undertook observational tasks, was irrational. Legislation: Migration Act 1958 ss. 473CC, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196; [2020] HCA 37
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 30 April 2025 Place: Melbourne Counsel for the Applicant: Jamie Blaker Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Alexander Solomon-Bridge Counsel for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Australian Government Solicitor ORDERS
MLG 536 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZW18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
3 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed on 2 March 2018 be dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).
BACKGROUND
In his submissions filed on 7 April 2025, the applicant provided the following background to this matter:
1. The applicant is a citizen of Sri Lanka, and is of Tamil ethnicity. In June of 2013, the applicant arrived in Australia. In February of 2017, he applied for a protection visa, being a Safe Haven Enterprise Visa (SHEV). On 27 July 2017, a delegate of the Minister refused the visa on the ground that, in the delegate’s assessment, the applicant was not owed protection obligations within ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). That decision was a fast track reviewable decision, and the Department of Immigration and Border Protection referred that decision to the Immigration Assessment Authority (the Authority) for merits review on that basis.
2. On 19 February 2018, and without a further hearing, the Authority (Reviewer, Mr Currie) decided to affirm the delegate’s decision to not issue a protection visa to the applicant. The applicant’s claims for protection before the Authority are summarised at CB351-2 [8], and included that, on the applicants account of events:
(a) in 2007, the applicant joined the Liberation Tigers of Tamil Elam (LTTE), whereupon he was: trained as a spy; allocated to an intelligence gathering unit and sent to Vavuniya undercover, in order to collect information on Government troop movements in the area;
(b) in 2009, a former member of the LTTE informed on the applicant to the Government of Sri Lanka;
(c) in August 2009, the applicant departed Sri Lanka for Saudi Arabia with the assistance of an agent. The applicant resided in Saudi Arabia until August 2010, and then returned to Sri Lanka;
(d) after the applicant’s return to Sri Lanka, he was chased by members of the Sri Lankan Army, and in October 2010 fled Sri Lanka again, this time to India. He resided in India until 2013, when he travelled by boat to Australia;
(e) the applicant fears that, if returned to Sri Lanka, he would be detained, tortured and killed by the Sri Lankan authorities for his spying on behalf of the LTTE.
3. Before the Authority made its decision, the applicant provided the Authority with additional materials. These were documents that were not before the delegate when the delegate had made their decision. One such document was provided to the Authority on 23 November 2017, and is identified in the Authority’s reasons as document “CR3”. That document is at CB298-336. Saliently, the document, on its face:
(a) was marked as being a document of the applicant’s then representatives, WLW Migration Lawyers;
(b) quoted a then contemporary statement (dated 14 August 2017) attributed to “UNP MP and minister Vijayakala Maheswaran”: “If they are LTTE, identify and slaughter them, we won’t come to question that” (CB 299);
(c) described Sri Lanka as topping the list of countries from which the NGO Freedom From Torture received referrals of victims of torture in 2016 (CB 299);
(d) described the International Truth and Justice Project’s then apparently contemporary allegations that “torture and arrests continue in Sri Lanka… with the International Truth and Justice Project alone documenting at least 35 cases of Tamils being tortured” (CB 300);
(e) described London Associated Press reporting (from November of 2017, on the face of CR3, CB 303-307) on abuses experienced by more than 50 Tamil men seeking asylum in Europe and who say they were abducted and tortured under Sri Lanka’s then current government (CB303-307);
(f) described the International Truth and Justice Project’s then most recent report (dated in CR3 as being published in July 2017) as highlighting that Tamils were abducted and tortured for a range of reasons including, presently relevantly, returning from the diaspora (CB 320);
(g) described the International Truth and Justice Project as having found in its latest report (CB 326):
“that torture and rape of Tamils in Sri Lanka has continued into 2017. The damning report is based on 24 statements from victims of torture that occurred in 2016 and 2017, and reinforced by 33 statements from 2015 victims of torture at the hands of the Sri Lankan authorities.
…
The torture included beatings with sticks, the use of stress positions, asphyxiation using plastic bags drenched in kerosene, the extraction of fingernails, the use of water torture, the suspension of individuals for several hours by their thumbs and the mutilation of genitals…”
(h) attributed to Ben Emmerson the following quote (with Ben Emmerson being identified in CR3 as the United Nations Special Rapporteur on human rights and counter-terrorism (CB 256), and the quote being attributed to reporting by The Guardian newspaper on 14 July 2017 (CB 256, fn 94)):
“Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture”
4. In being presented with this new information, the Authority was required to deal with it in accordance with s 473DD of the Act. That section provided:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
5. The Authority already had before it a country information report prepared by the Department of Foreign Affairs & Trade, referred to in the Authority’s reasons as: “Department of Foreign Affairs & Trade (DFAT) “Sri Lanka - Country Information Report”, 24 January 2017, CISEDB50AD105”: CB 354. That DFAT Report is annexed to an affidavit filed by the applicant together with these submissions.
6. The Authority declined to consider CR3. The Authority’s reasons were as follows (CB351, [6]-[7])
•Having reviewed CR3 I am satisfied that the substantive arguments about the present situation in Sri Lanka contained within the report is consistent with a range of other information which was before the Minister at the time of the delegates decision. I observe that the report does not engage with any of the applicant’s claims directly, other than in very brief concluding remarks. The vast majority of the report contains general country information, and does not deal with matters which have direct bearing on the applicant’s claims. I consider that CR3 is inflammatory, and uses selective sourcing to arrive at its conclusions. I am not satisfied it is a representative sample of recent material about conditions in Sri Lanka and I am unpersuaded by argument contained in the concluding remarks of CR3 to the effect that the most recent DFAT report used by the delegate is not accurate and that CR3 should be used in preference to the DFAT report.
•None of the information in the applicant’s submission or any of the correspondence sent by his representative outlines any matters or points to any exceptional circumstances which might justify the use of this material. No exceptional circumstances are apparent to me in this case. I am not satisfied that any exceptional circumstances exist for me to consider the report and so s.473DD(a) is not met, and I am prevented from doing so.
7. Noting that some of the applicant’s claims relate to his employment with and later membership of the Liberation Tigers of Tamil Elam (LTTE), I have obtained a document titled An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE) published in 2014 by the Centre of Conflict, Development and Peacebuilding in Geneva which outlines an organisational history of the LTTE. The document provides credible independent reporting which bears directly on specific aspects of the applicant’s claims, and which is not covered in other material before me. I am satisfied that exceptional circumstances exist to consider this material.
(footnotes omitted)
In his written submissions filed on 22 April 2025, the Minister provided the following background to this matter:
1. The applicant is a Sri Lankan citizen of Tamil ethnicity.
2. On 12 February 2017, the applicant applied for a Safe Haven Enterprise (Subclass 790) visa [CB 50-118]. The applicant’s claims principally concerned his membership of and activities for the Tamil Tigers (LTTE), resultant attention from the Sri Lankan Army, and his fears of harm for having spied on behalf of the LTTE (IAA: [8]).
3. On 27 July 2017, a delegate of the first respondent (the Minister) refused to grant the visa [CB 164-189]. The matter was thereafter referred to the second respondent (the IAA) for review. On 22 August 2017, the applicant’s representatives lodged submissions and further evidence with the IAA [CB 216-265] which included “country information” [CB 256-265]. On 30 August 2017, the applicant’s representatives lodged additional “country information” [CB 266-294]. On 23 November 2017, the applicant’s representatives lodged yet further “country information” [CB 296-336]. In doing so, the enclosing email indicated it was “the most recent” such information, may have “some overlap with previous country information sent by our office”, and therefore requested that it be that latest version to which regard was had by the IAA [CB 297].
4. In its decision, the IAA referred to that latest tranche of “country information” as “CR3” (IAA: [6]). CR3 was composed by the applicant’s representatives’ firm and appeared on their letterhead. It is apparent from a perusal of the subheadings of CR3 (which are indexed on CB 298) that the information summarised in that document was directed to painting Sri Lanka as unsafe for Tamils. Hence, in its “concluding remarks” the document observed [CB 336] (emphases in original):
We submit that this information points to the fact there remains in Sri Lanka, a sense of hyper-vigilance as to any possible LTTE or Tamil Separatist resurgences.
It further evidences the fact that Sri Lankan Tamils with even the most tenuous of connections in the past to the LTTE remain very much at risk of harm. This is regardless of the length of time they have spent outside of the country because the rigorous checks conducted at the Airport on their arrival will inevitably alert the relevant authorities to that person’s entire history once a name and citizenship check has been conducted.
The information clearly shows that the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on are not entirely accurate.
We submit that this new information should be taken into consideration when determining our client’s application.
5. On 19 February 2018, the IAA affirmed the delegate’s decision [CB 349]. In doing so, the IAA accepted some aspects of the applicant’s claims (e.g. IAA: [21]), but concluded that “much of the applicant’s evidence [was] misleading and exaggerated” (IAA: [56]; see also e.g. IAA: [24], [34], [36], [55]-[56]), and that various events simply did not happen (e.g. IAA: [26], [31]), or were fabricated (e.g. IAA: [40]-[41], [52], [56]).
6. In its decision, the IAA at various points relied on the 2017 DFAT Country Information Report for Sri Lanka (which is Annexure 1 to the affidavit of Abdulaziz Mume made 7 April 2025), particularly in relation to the claimed risk to the applicant as a failed asylum seeker, and the general situation for Tamils in Sri Lanka (IAA: [42]-[55]).
7. The applicant has filed an amended application for judicial review dated 7 April 2025, and written submissions dated 7 April 2025 (AWS).
MATERIAL RELIED UPON
The applicant relied upon:
(a)his application filed 2 March 2018, as amended on 7 April 2025 and further amended on 8 May 2025 (pursuant to leave given at the final hearing on 30 April 2025), (“the application”);
(b)his written submissions filed on 7 April 2025;
(c)the court book filed on 19 February 2019; and
(d)the joint bundle of authorities filed on 29 April 2025.
The Minister relied upon:
(a)his response filed on 27 March 2018;
(b)his written submissions filed on 22 April 2025;
(c)the court book filed on 19 February 2019; and
(d)the joint bundle of authorities filed on 29 April 2025.
GROUND 1
The first ground of review in the amended application filed by the applicant on 7 April 2025 was:
By failing to first consider document CR3 against the criterion in s 473DD(b)(i) of the Migration Act1958 (Cth) before addressing the criterion in s 473DD(a) of that Act, the Authority failed to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Particulars
The Authority at [6] of its reasons for decision gave reasons for its decision under s 473DD of the Act not to consider the document referred to by the Authority as “CR3”. In the Authority’s reasons at [6], the Authority failed to perform the procedural duty imposed on it by s 473DD as authoritatively construed in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, [8]-[12]. In particular, the Authority: i) failed to address the criterion in s 473DD(b)(i) of the Act; and ii) in any event failed to address that criterion before addressing the criterion in s 473DD(a).
However, at the final hearing on 30 April 2025, the applicant:
(a)conceded that the Authority did first assess the information in the document referred to as CR3 against the criteria specified in ss.473DD(b)(i) and 473DD(b)(ii) of the Migration Act 1958 (“the Act”);
(b)withdrew subparagraph 11(a) of the applicant’s written submissions filed on 7 April 2025; and
(c)was given leave to further amend ground 1 of his application for review.
The further amended ground 1 reads:
Having assessed the document CR3 as satisfying the criteria specified in s.473DD(b)(i) of the Migration Act 1958 (“the Act”), the Authority failed to take the outcome of that assessment into account in its assessment against the criterion specified in s.473DD(a) of the Act.
Section 473DD of the Act provided that:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The applicant noted AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196; [2020] HCA 37 where it was said that:
11Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12The result, as has been recognised by the Federal Court in numerous other cases (29), is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) (30).
(footnotes omitted)
CR3 is a written submission dated November 2017 from the applicant’s lawyers. It is headed “Sri Lankan Country Information”. It is a submission, but quotes a good deal of country information.
The Authority said the following about CR3:
6.The email of 23 November 2017 contained the following attachment:
[a]An expanded and updated version of CR2, of 38 pages (hereafter CR3). In the email, the applicant’s representative advised that attachment CR3 was the most up to date version of the Country Information report which had been previously submitted as CR1 and CR2. As a consequence, the representative argued that CR3 should be preferred over the earlier versions of the document (i.e. CR1 and CR2).
[b] Having reviewed all three versions of the Country Information Report (CR1, CR2 & CR3) I am satisfied that CR3 incorporates the content of the earlier versions of the document. I have acceded to the representative’s request and discounted the earlier versions of the document in preference to CR3.
[c] CR3 cites 110 references to support its conclusions. Of these, more than half postdate [the] delegates’ (sic) decision[.] I accept that the country information report could not have been submitted to the Minister in its current form prior to the date of the delegate’s decision, and so s.473DD (b) (i) is met.
[d]Having reviewed CR3 I am satisfied that the substantive arguments about the present situation in Sri Lanka contained within the report is consistent with a range of other information which was before the Minister at the time of the delegates (sic) decision. I observe that the report does not engage with any of the applicant's claims directly, other than in very brief concluding remarks. The vast majority of the report contains general country information, and does not deal with matters which have direct bearing on the applicant's claims. I consider that CR3 is inflammatory, and uses selective sourcing to arrive at its conclusions. I am not satisfied it is a representative sample of recent material about conditions in Sri Lanka and I am unpersuaded by argument contained in the concluding remarks of CR3 to the effect that the most recent DFAT report used by the delegate is not accurate and that CR3 should be used in preference to the DFAT report.
[e]None of the information in the applicant's submission or any of the correspondence sent by his representative outlines any matters or points to any exceptional circumstances which might justify the use of this material. No exceptional circumstances are apparent to me in this case. I am not satisfied that any exceptional circumstances exist for me to consider the report and so s.473DD(a) is not met, and I am prevented from doing so.
The crux of the further amended ground 1 is that the Authority, having accepted that some of the country information in CR3 could not have been provided to the delegate, because it post-dated the delegate’s decision, did not take that circumstance into account in determining whether there were exceptional circumstances justifying CR3 being considered.
The applicant argued that the Authority’s statement that:
None of the information in the applicant’s submission or any of the correspondence sent by his representative outlines any matters or points to any exceptional circumstances which might justify the use of this material. No exceptional circumstances are apparent to me in this case.
meant that the Authority did not treat the information in CR3 that post-dated the delegate’s decision as a matter capable of contributing to the existence of exceptional circumstances.
The applicant argued that, when the Authority said that there was nothing that:
points to any exceptional circumstances which might justify the use of this material (emphasis added)
the Authority, in effect, considered that the information in CR3 that post-dated the delegate’s decision could not possibly have amounted to exceptional circumstances.
However, that submission does not take account of the Authority’s subparagraph 6[d] in its reasons for decision. The Authority did not say so explicitly, but it is obvious that, in that subparagraph, the Authority set out its reasons for not regarding the information in CR3 as amounting to exceptional circumstances. Those reasons were that:
(a)the country information in CR3 that post-dated the delegate’s decision was consistent with other country information that was before the delegate;
(b)CR3 did not engage with the applicant’s claims directly, which I take to mean did not contain personal information about him;
(c)CR3:
(i)was inflammatory;
(ii)used selective sourcing for its conclusions; and
(iii)was not representative of recent country information;
which I take to mean CR3 contained information that was not reliable; and
(d)the most recent DFAT report was a preferable source of country information.
In other words, the Authority weighed up the country information in CR3, particularly the country information that post-dated the delegate’s decision, and found that it was not useful.
The Authority then turned to a consideration of whether there were exceptional circumstances justifying the use of CR3 and concluded that there were none. That conclusion must be read as being informed by the conclusion in the subparagraph 6[c] of the Authority’s reasons for decision to the effect that CR3 was not useful. Having drawn that conclusion, it was open to the Authority to then conclude that there was nothing that:
points to any exceptional circumstances which might justify the use of this material. (emphasis added)
Ground 1 is not made out.
GROUND 2
The second ground of review in the application is:
The Authority’s assessment of document CR3 against the criterion in s 473DD(a) was such as to transgress the requirement implied in that subsection that the assessment was not to be irrational or illogical.
Particulars
The Authority’s assessment of CR3 against the criterion in s 473DD(a) was irrational and illogical. That is because that assessment was based upon the following findings (each stated at [6] of the Authority’s reasons) which could not rationally support the Authority’s assessment that CR3 did not satisfy the criterion in s 473DD(a):
[a]The Authority’s decision that there relevantly were not exceptional circumstances was said to be supported because “[h]aving reviewed CR3 I am satisfied that the substantive arguments about the present situation in Sri Lanka contained within the report is consistent with a range of other information which was before the Minister at the time of the delegates decision”. However, CR3 was intended to, and did, present information that postdated the country information that [had] been before the Minister at the time of the delegate’s decision.
[b]The Authority’s decision addressing s 473DD(a) was further said to be supported because CR3 “does not engage with any of the applicant’s claims directly, other than in very brief concluding remarks”: CB 351 [6]. That was not a rational appraisal of how the information in CR3 beared (sic) on the applicant’s claim.
[c]The Authority’s decision addressing s 473DD(A) was further said to be supported because the Authority “consider[ed] that CR3… uses selective sourcing to arrive at its conclusions”: CB 351 [6]. The Authority’s view, so expressed, was not given an explanation, or basis in documents. It was not rationally based.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16 Crennan and Bell JJ said at [135]:
… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …
Irrationality as a ground of judicial review is a notoriously high hurdle.
As to subground 2[a], just because country information post-dated the delegate’s decision did not mean that it was qualitatively different from country information that pre-dated the delegate’s decision. In theory, there could have been a major change in the political climate in Sri Lanka following the delegate’s decision, and, in theory, CR3 might have described the consequences of that change. However, the applicant did not point to any such major change in the political climate in Sri Lanka. It was not illogical for the Authority to say that there were not exceptional circumstances justifying the use of CR3 on the basis that CR3 was consistent with information that pre-dated the delegate’s decision.
As to subground 2[b], the information in CR3 was general country information. It was not about the applicant specifically. That was what the Authority meant when it said CR3:
does not engage with any of the applicant’s claims directly, other than in very brief concluding remarks.
That was just one of the Authority’s reasons for considering that there were not exceptional circumstances justifying the use of CR3. In effect, in that comment, the Authority was addressing s.473DD(b)(ii) of the Act. That was entirely appropriate.
It was not illogical for the Authority to say that CR3 did not engage “directly” with the applicant’s claims, in circumstances where CR3 consisted of general country information.
As to subground 2[c], the DFAT report, which the Authority did rely on, contained a section on torture. It referenced the International Truth and Justice Project’s 2015 and 2016 reports, Freedom from Torture’s 2015 report and Amnesty International’s 2012 report. CR3 referenced reports from those entities, but also numerous newspaper reports. Reliance on the newspaper reports can fairly be described as selective sourcing. Consequently, it was not illogical for the Authority to conclude that there were not exceptional circumstances justifying the use of CR3 because CR3 relied on selective sourcing.
At the final hearing, counsel for the applicant did not press subparagraph 13(d) of his written submissions, which relate to this ground.
Ground 2 is not made out.
GROUND 3
The third ground of review in the application is:
The Authority’s assessment of document CR3 against the criterion in s 473DD(a) was in jurisdictional error, because in that assessment the Authority asked itself the wrong question.
Particulars
The Authority decided not to consider CR3 partly on the basis of the following consideration: that CR3 was “inflammatory”: CB 351 [6]. The scope, subject matter and purpose of s 473DD(a) are not such as to render relevant to the inquiry under that subsection whether information is inflammatory. That consideration is alien to the inquiry under s 473DD(a), and is irrelevant in a legal sense
By describing CR3 as “inflammatory” and using “selective sourcing”, the Authority was, in effect, saying that CR3 was unreliable and explaining why it thought so. Deciding whether a document put before it was reliable or not was a highly relevant enquiry, which decision-makers legitimately undertake every day.
Ground 3 is not made out.
GROUND 4
The fourth ground of review in the application is:
The Authority’s finding that the applicant was not a spy for the LTTE did not satisfy an implied condition of the jurisdiction in s 473CC, being a condition of rationality.
Particulars
The Authority’s decision was materially based upon the Authority’s assessments that:
•there were differences between accounts that the applicant gave in respect of his claim to have been a spy for the LTTE (Authority’s reasons at [20] and [21]); and
•the applicant’s claim to have been a spy for the LTTE was exaggerated and incorrect (Authority’s reasons at [21]).
That in turn supported the Authority’s more general conclusion “that the applicant has exaggerated the level of interest the authorities had in him at this time, in order to enhance his claims for protection in Australia”: CB 358 [37], similarly CB 362 [56].
However, the differences between accounts to which the Authority referred at [20] and [21] of its reasons were not differences rationally and reasonably capable of giving rise to concerns about the applicant’s credibility.
Section 473CC of the Act provided that:
Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Paragraphs 20, 21, 37 and 56 of the Authority’s reasons for decision are as follows:
20. The applicant has provided some conflicting evidence about this period. In his SHEV application he suggests that whilst he was in Vavuniya his cover identity was that he was employed as a stonemason. At interview he describes this employment as a façade which was facilitated by [a] pro-LTTE employer. In other sections of the interview, he claims that he was given a fake NGO identity card, and was instructed to use the card to explain his presence in Vavuniya and to indicate his employment if he was questioned. Whilst these different explanations of the same events are troubling, I concede that they are not necessarily contradictory. General country information reports that Vavuniya Township had been occupied by government forces by mid-2008 with the front afterwards moving north.
21. Having considered the applicant’s evidence on this the matter of his spying for the LTTE, I have some doubts. I note that when discussing his work at in the customs checkpoint role, the applicant was able to provide lots of detail about the day to day activities of the position. However, when discussing his spying role, he has provided less information, his explanations have been vaguer and he has not been entirely consistent (as noted in the preceding paragraph). Whilst the applicant's claims about this period as a spy for the LTTE seem a little improbable and are not supported by any independent evidence, I observe that the applicant has consistently repeated the basic premise of this claim since his arrival in Australia, including at his 20 June 2013 Screening Interview, his 28 August 2013 Entry Interview, his February 2017 SHEV application and his May 2017 protection visa interview. However, I note that at interview he has claimed his training for the role lasted approximately one month from which I conclude that should not be described as a spy (in the conventional understanding of this word). Given the applicant's consistency on this issue and his other evidence, I am prepared to accept some aspects of this claim. I conclude that the applicant was responsible for the conduct of limited observation tasks with a limited risk profile, rather than a wider undercover role where he might be forced to engage regularly with the Government forces. After careful consideration, I accept that the applicant was employed between 2007 and the end of the conflict in 2009 in Vavuniya on observational tasks. I note that the applicant did not face any harm during this period arising from this role.
…
37. Regarding the applicant’s claim that his mother advised him that he was of interest to the Sri Lankan authorities (outlined in paragraph 29), I note that the applicant’s SHEV application states that the authorities’ interest in him arose, not because of any previous intelligence about the applicant, or any suspicion of his LTTE related activities, rather because the officer who spoke to his mother was conducting a check of family identity cards for camp residents, during the check the officer noted the applicant's absence from the camp and merely asked about his whereabouts. Furthermore, unlike the account in his SHEV application, the applicant claimed that former LTTE personnel, who were working with the authorities at that time, visited his parents in the camp, and informed them that the applicant was wanted by the CID. I am not satisfied by the applicant's different explanations of this event. The applicant has not satisfied me that he is being truthful. I note that in both instances, the applicant has added new details to his claims whilst at interview and that cumulatively these additional claims tend to imply that the applicant was under greater suspicion than in his earlier SHEV application. I conclude that that the applicant has exaggerated the level of interest the authorities had in him at this time, in order to enhance his claims for protection in Australia.
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56. Overall, I would characterise much of the applicant's evidence as misleading and exaggerated. I observe that evidence given by the applicant at his protection visa interview tends to suggest that he was at significantly higher risk, was under a greater level of suspicion and required special assistance to enter and leave Sri Lanka than the claims from his earlier SHEV application. I do not accept these claims by the applicant and conclude that they have been made by him in order to strengthen his claims for protection in Australia. Overall I do not find the applicant to be a credible witness.
This ground proceeds on a misapprehension of the Authority’s reasons for decision. The Authority accepted that the applicant was a spy for the LTTE, albeit in the limited sense of undertaking observational tasks for the LTTE. That conclusion was primarily based on the applicant’s own evidence that his training lasted about one month. The Authority considered that, from that fact alone, the applicant could not properly be described as a spy.
The conclusion that the applicant was not a fully-fledged spy was not based on any inconsistencies in his evidence but, rather, on the very short training period that the applicant claimed he had.
The Authority specifically said in [20] that the differing accounts in the applicant’s evidence were troubling but not necessarily contradictory. The Authority then noted in [21] that:
(a)the applicant gave a lot of detail about his job in customs but much less detail about his job as a spy;
(b)there were the inconsistencies mentioned in [20] about his role as a spy; and
(c)the spying claims were a little improbable.
However, the Authority then noted, in [21], that the applicant had consistently claimed to have been a spy for the LTTE. On that basis, and notwithstanding the concerns mentioned in the previous paragraph, the Authority accepted that the applicant had done some spying for the LTTE. However, because the applicant claimed to have only done one month’s training, the Authority did not accept that the applicant was a spy, as that word is conventionally understood, but considered that he merely did some observational work.
It was therefore open to the Authority to consider that the applicant had exaggerated his role for the LTTE, given that he had claimed to be a spy when the Authority concluded he only did observational work.
Ground 4 is not made out.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 3 September 2025
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