BDM21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1325
•18 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDM21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1325
File number(s): SYG 770 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 18 August 2025 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed Legislation: Migration Act 1958 (Cth) ss 116(1AA), 501
Convention on the Rights of the Child Art 3(1)
Cases cited: BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Hopkins v Minister for Immigration and Citizenship [2007] FCA 1108
Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 2020 FCA 148
Division: Division 2 General Federal Law Number of paragraphs: 116 Date of hearing: 20 June 2025 Place: Parramatta Solicitor for the Applicants: Mr Daawar, Ariana Defence Lawyers Solicitor for the First Respondent: Ms Jackson, Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 770 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDM21
First Applicant
BDN21
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
18 AUGUST 2025
THE COURT ORDERS THAT:
1.The application filed on 3 May 2021 is 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 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 SKAROS
By application filed on 3 May 2021 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 30 March 2021. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) to cancel the Protection (Class XA) (Subclass 866) visa (the visa) held by the first applicant (the applicant).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicants are citizens of Sri Lanka.
The applicant entered Australia on 17 February 2001 as the holder of a Visitor visa (Subclass 676) visa in the name of MA.
On 6 March 2001, the applicant applied for a Temporary Protection (Subclass 785) visa. That application was refused on 31 May 2001. The decision was affirmed by the then Refugee Review Tribunal (the RRT). The applicant filed several judicial review applications in the Federal Circuit Court and the Federal Court of Australia, none of which were successful. He also lodged a request for Ministerial intervention.
On 8 November 2007, the applicant lodged the application for the visa, the subject of this review, under the name of JP. On 30 April 2008, the applicant was granted the protection visa.
On 25 August 2010, the second applicant (who was then offshore) lodged a combined Partner visa application (Subclass 309/100). She was granted the provisional Partner (Subclass 309) visa on 16 September 2011 and subsequently entered Australia on 26 September 2011. On 26 November 2012, she was granted the permanent Partner (Subclass 100) visa.
On 9 April 2012, the applicant lodged an application for Australian citizenship by conferral. Information was received by the Department from the NSW Roads and Maritime Services linking two identities to the applicant. On 28 November 2013, the application for citizenship was refused as the delegate could not be satisfied of the applicant's identity.
On 3 March 2020, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) informing him that it appeared there was a ground under s 116(1AA) of the Migration Act 1958 (Cth) (the Act) to consider cancelling his protection visa. The applicant was invited to provide a response by 18 March 2020.
On 17 March 2020, the applicant's representative requested an extension of time to respond, which was granted. On 21 March 2020, the applicant's representative provided statements from the applicants.
On 21 May 2020, the delegate made a decision to cancel the applicant's protection visa under s 116(1AA) of the Act. On the same day, the second applicant's partner visa was consequentially cancelled in a separate decision.
On 27 May 2020, the applicants sought to lodge a single application for a review of the delegate's decisions with the Tribunal. On 28 May 2020, the Tribunal informed the applicants' representative that separate applications had to be made in respect of each decision. On 1 June 2020, the representative advised the Tribunal that a separate review application had been lodged by the second applicant. A request was made for the Tribunal to 'delete' the second applicant from the applicant's review application. There is no record of the second applicant having been withdrawn from that application.
On 16 February 2021, the applicants were invited to appear before the Tribunal at a hearing scheduled on 16 March 2021 to give evidence and present arguments in relation to the issues arising in the review.
On 15 March 2021, the applicants' representative provided to the Tribunal various identity documents and character references relating to the applicant.
On 16 March 2021, the applicants appeared before the Tribunal at the scheduled hearing. They were assisted by their representative and an interpreter in the Tamil and English languages.
On 22 March 2021, the representative provided to the Tribunal various medical records relating to the applicants' son and the second applicant.
On 30 March 2021, the Tribunal affirmed the delegate’s decision to cancel the first applicant's protection visa. The Tribunal found it had no jurisdiction with respect to the second named applicant as the decision in relation to her (being the cancellation of her Subclass 100 visa) was the subject of a separate review application.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was whether the ground for cancellation under s 116(1AA) of the Act was made out and, if so, whether the applicant’s protection visa should be cancelled.
The Tribunal set out s 116(1AA) of the Act and the particulars relevant to the ground of cancellation as set out in the NOICC. The Tribunal also set out the information contained in the statements from the applicants that were provided in response to the NOICC.
In determining whether the ground for cancellation under s 116(1AA) existed, the Tribunal considered the evidence before it and concluded that it ‘overwhelmingly demonstrated’ that the applicant was not JP. The Tribunal set out its credibility concerns which it noted were damaging to the applicant’s overall credibility, including his claims to have faced harm in Sri Lanka.
·At [11]–[14], the Tribunal set out its concerns with the applicant’s initial response to the adverse information put to him for comment on 31 July 2012. It observed that his claim was not that his genuine identity was that of JP and that he had used a previous identity, but instead that he had concerns that his identity was being used by another person. This appeared to undermine his later claims as to his identity. While the Tribunal did not consider the initial response to be a major credibility concern on its own, it was considered cumulatively with other credibility concerns.
·At [15]–[18], the Tribunal set out its concern that the protection visa application made by the applicant in 2001 under the name of MA made no mention of people smugglers, contrary to claims before the Tribunal that there were people smugglers involved who advised him to provide false information in the visa application. The Tribunal considered that this too was not a significant credibility concern on its own, but was considered cumulatively with other matters.
·At [19]–[23], the Tribunal considered that the applicant's claims in his 2007 protection visa application, under the name JP, did not make sense having regard to the events alleged to have occurred in:
·2002, where he claimed to have remained in Sri Lanka but could not find his father;
·2004, where he claimed that because of the tsunami he and his mother relocated to Ampara;
·2006, where he was harassed by a political group; and
·2007, where he fled to Colombo.
·The Tribunal observed that the applicant had in fact been in Australia since 2001. At the hearing, the applicant admitted that the claims as to what had occurred in Sri Lanka from 2002 were not true. The Tribunal considered this to be a significant credibility concern, as it undermined the credibility of the claims which resulted in him successfully being granted the protection visa.
·At [24]–[25], the Tribunal noted that the applicant’s passport, under the name JP, had a 2007 Malaysian entry stamp on it, which did not make sense because the applicant was in Australia at the time. The Tribunal did not accept the applicant’s explanation that his mother gave the passport to someone else who used it and considered that the passport stamp itself fundamentally undermined the claim that the applicant was genuinely JP.
·At [26]–[29], the Tribunal considered that the applicant’s real identity was likely that of MA and not JP as his wife was from Panadura, close to the location where MA was from, whereas the purported location JP was from was quite distant.
·At [30]–[31], the Tribunal observed that the applicant’s Skype name (which he had used to communicate with the second applicant) was more consistent with his identity being that of MA.
·At [32]–[35], the Tribunal considered that the failure by the applicant to be successful in his application for a protection visa under his original claimed identity, and then his subsequent lodgement of another protection visa application under a new claimed identity was more consistent with a finding that the second identity and those claims being fabricated. The Tribunal did not accept the applicant’s response that the true claims and identity were contained in his second protection visa application.
·At [36]–[38], the Tribunal considered that its preceding concern was reinforced by the fact that the applicant had not lodged the second visa application, (which he claimed contained truthful claims under a truthful identity), soon after the delegate’s refusal of the visa, but instead he waited until after the initial visa refusal and the Tribunal’s decision had been appealed through multiple courts and a request for Ministerial intervention had been made. After considering the applicant’s explanation, the Tribunal reasoned that the applicant’s conduct was more consistent with the notion that the new claims had been fabricated.
Cumulatively considered, the Tribunal found the credibility concerns outlined above to be extremely damaging to the genuineness of the applicant’s now claimed identity and the credibility of his 2007 claims for the protection visa and his credibility generally.
The Tribunal considered the significant weight of adverse matters identified clearly suggested the identity of JP was fraudulently acquired by the applicant. The Tribunal accepted the potential for JP having been a genuine identity, noting that birth documents had been provided to the Tribunal the day before the hearing. However, the Tribunal was not satisfied that JP was the applicant’s true identity.
As such, the Tribunal found that it was not satisfied as to the applicant’s identity and found that a ground for cancellation pursuant to s 116(1AA) of the Act exists.
As s 116(1AA) was not a mandatory cancellation provision, the Tribunal proceeded to consider whether the visa should be cancelled.
Consideration of the discretion
The Tribunal noted that there were no matters specified in the Act or Regulations that must be considered in the exercise of the discretion; however, it had regard to the circumstances of the case and the matters in the Department's Procedural Instruction 'General visa cancellation powers'.
The Tribunal also summarised the information before it, as provided by the applicants, including the responses to the NOICC and the character references provided attesting to the applicant’s good character.
The Tribunal made the following findings in respect of discretionary factors which were discussed at the hearing:
The purpose of the applicant's travel and stay in Australia
At [51]–[56], the Tribunal noted the applicant's submission that he fled Sri Lanka for his safety and to seek protection and considered this was relevant to the question of whether the applicant was owed non-refoulement obligations by Australia. By reference to its earlier adverse credibility findings, the Tribunal found that its credibility concerns significantly undermined the applicant's claims to face a real chance of serious or significant harm in Sri Lanka, particularly in circumstances where the applicant had maintained that his true identify was that of JP, which the Tribunal found to be untruthful.
The extent of compliance with visa conditions
At [57], the Tribunal was satisfied that the applicant had not breached visa conditions.
The circumstances in which the ground of cancellation arose and whether they were beyond the applicant’s control
The Tribunal noted that the applicant, despite expressing contrition for lodging the initial visa application which he claimed was under a false identity, made no claims against this factor because he fervently maintained that he was genuinely JP.
The degree of hardship that may be caused if the visa is cancelled
The Tribunal accepted the hardship that would be faced by the applicant, his wife and two children, aged five and eight, if his visa were cancelled. It acknowledged the family unit had resided in Australia for many years and took into account the disruption to their lives if they had to return to Sri Lanka.
Whether international obligations would be breached
The Tribunal noted that it had regard to the best interests of the applicants' two children, who were Australian citizens. It noted that the children would be able to obtain Sri Lankan citizenship and become dual Sri Lankan-Australian citizens. It noted that it was likely the family would return as a unit to Sri Lanka and, therefore, the children would have the care and protection of their parents.
The Tribunal did not accept that the applicant and his family would be at risk of harm upon return to Sri Lanka.
Other matters raised by the applicants
The Tribunal made the following findings in respect of various claims raised by the applicants:
(i)The Tribunal considered that there would be extended family support for the applicant and his family on return to Sri Lanka.
(ii)The Tribunal had regard to medical information provided in relation to one of the applicant’s children. Based on that evidence, the Tribunal accepted that one of the applicants' children suffered from episodic asthma. It accepted that medical care may be superior in Australia to Sri Lanka. However, it was not satisfied the child would not receive adequate medical care and found there was no suggestion his condition was severe or acute.
(iii)The Tribunal considered claims made in respect of the second applicant and accepted that she suffered from depression and anxiety. The Tribunal observed that the second applicant was not referred for counselling until after the Tribunal hearing, but it nevertheless accepted the second applicant had some degree of mental health issues and that treatment would be superior in Australia.
(iv)The Tribunal had regard to the character references that had been provided attesting to the applicant’s positive character. However, given the circumstances, including the applicant’s use of different identities and protection claims, the Tribunal was not satisfied the applicant had been an honest and good citizen in Australia.
Mandatory legal consequences of cancellation
The Tribunal accepted that if the visa remained cancelled the applicant could be an unlawful non-citizen; however, it considered the applicant would remain eligible to hold a bridging visa while arrangements for departure were made.
Balancing the different considerations
At [80]–[82], the Tribunal summarised the factors in favour of exercising the discretion not to cancel the visa. At [83]–[84], it balanced these factors against the circumstances in which the ground of cancellation arose, which it did not consider were beyond the applicant's control, but had demonstrated 'concerted, quite sophisticated and deliberate fraudulent activity and claims’ on the part of the applicant.
In weighing all the different circumstances, the Tribunal considered that the discretion should be exercised to cancel the applicant’s visa.
The Tribunal briefly noted that there was a non-disclosure certificate issued under s 438 of the Act which related to the Facial Image Comparison of the different identities used by the applicant. The Tribunal did not consider the information to be material to the review because the applicant had admitted that he was the person under his previously claimed identity.
The Tribunal affirmed the decision to cancel the first applicant's protection visa. In respect of the second applicant, it found that it had no jurisdiction.
APPLICATION TO THIS COURT
The application which commenced the proceedings contained three grounds of judicial review. Only two of the grounds were pressed.
The application was accompanied by an Affidavit of the applicant, sworn on 3 May 2021. The affidavit annexed the Tribunal’s decision and contained submissions which were, in part, relevant to the grounds of judicial review and, in part, challenged the merits of the Tribunal’s findings. As the Tribunal’s decision was already in the Court Book, it was not necessary to take the affidavit into evidence. However, there being no objection by either party, the Court indicated at the hearing that it would take into account the content of the affidavit, to the extent it was relevant to the grounds of review, as submissions.
The Court Book filed by the Minister was tendered at the hearing and marked Exhibit CB.
The Minister filed their written submissions on 27 May 2025.
The applicants filed their written submissions on 2 June 2025. The applicants required leave to rely on these submissions as they were not filed in accordance with the orders made by a Registrar of this Court on 14 July 2021. There being no objections by the Minister, leave was granted.
At the hearing on 5 June 2025, the applicants were represented by Mr Daawar of Ariana Defence Lawyers. The Minister was represented by Ms Jackson of Minter Ellison. The oral submissions of the parties developed their written submissions.
At the hearing, I discussed with Ms Jackson an issue that was raised by the applicants’ representative generally, though it may not have been sufficiently articulated, regarding the best interests of the children and whether those interests, which the Tribunal noted were a primary consideration (at [63]), had been properly considered and weighed by the Tribunal when determining whether the visa should be cancelled.
Ms Jackson sought time for the Minister to consider the issue and file further written submissions. Accordingly, orders were made for the Minister to provide further written submissions, which were filed with the Court on 16 June 2025.
GROUNDS OF REVIEW
Of the three grounds of judicial review, only one and two were pressed.
The grounds (without alteration) are as follows:
1.Jurisdictional Error
The Delegate of the Minister and the AAT member both fell into jurisdictional error, by dealing with the matter dismissively which led to failing to give proper, genuine and realistic consideration to the relevant identity evidence in reaching decision to cancel the applicant visa under section 116(1AA) of the Migration Act 1958.
Particulars:
a. In arriving at its ultimate decision the delegate and the AAT member, expressed doubts or concerns about the reliability, authenticity or credibility of the evidence provided by the applicant and his claim because of his previous protection application in Australia under a fake name and some consequential elements in his second successful protection application, not relevant determining the identity documents of the Applicant. The Applicant provided the department his identity documents and claimed to be authentic and original. The delegate of the minister did not give sufficient credit and consideration to those documents and give more consideration to identity documents provided in Applicant first protection application while the applicant admitted they were fake and bogus provided by people smugglers.
b. In arriving at its ultimate decision the delegate and the AAT member, expressed doubts or concerns about the reliability, authenticity or credibility of the applicant various real and genuine elements of the his claim, and give much more consideration and credit to the consequential elements of the second claim while the application informed them they were consequential due to his circumstance for a successful protection application.
2.Jurisdictional Error
The Delegate of the Minister and the AAT member both fell into jurisdictional error, by failing use their discretion not to cancel the application visa due to his subjective circumstances and the risk of harm if he and his family if returned home to Sri Lanka. The Minister and the AAT failed to assess all relevant factors associated with his subjective circumstances and his claim of fear of return to his home country, as required by law and failed to give proper, genuine and realistic consideration to the relevant elements of his claim having fear and risk of harm if he and his family is returned home.
Particulars
The delegate and the AAT member failed to use their discretion not to cancel give proper, genuine and realistic consideration to the relevant factors of the Applicant fear and risk of harm if he and his family is returned home to Sri Lanka.
The Delegate and the AAT made jurisdictional error in using their discretions by failure to taken into account the fact that the applicant had two children born in this country who were Australian citizens. It is a fact that the applicant had children who had lived in Australia their entire lives were relevant to the question of how reasonable it is for the applicant to return or relocate to other regions in Sri Lanka when the applicant visa is cancelled.
The delegate and the AA T failed to consider the relevance of any effect on those children and his wife if the applicant was forced to return or relocate to Sri Lanka having in mind the difficulties and risk of harm there including risk of harm, difficulties with food, drinking water, sanitation, electricity, education, health care and adequate shelter.
The grounds advanced by the applicants appear to take issue with the decisions made by ‘the delegate of the Minister and the AAT’ and/or ‘Minister and the AAT’. This Court has no jurisdiction to review the delegate’s decision. Accordingly, the grounds of judicial review can only be considered (and have only been considered) in respect of the decision made by the Tribunal.
Ground One
By ground one the applicants contend that the Tribunal, when determining whether the ground of cancellation under s 116(1AA) existed, failed to give proper, genuine and realistic consideration to the evidence before it relevant to the applicant’s identity.
The particulars to this ground take issue with the Tribunal’s consideration of the identity documents provided with the second application, lodged in 2007, for a protection visa. It is alleged that the Tribunal failed to properly consider those documents, which supported the applicant’s claimed identity of JP. The applicants also took issue with the Tribunal’s consideration of the identity documents provided with the first protection visa application, lodged in 2001. It is alleged that the Tribunal gave ‘more consideration’ to those documents notwithstanding the applicant’s admission that they were non-genuine.
It was submitted that whilst the applicant’s claims in the second protection visa application were partially not factual, as he was in Australia at the time he claimed to have been in Sri Lanka and the passport under the identity of JP indicated he had entered Malaysia, there was no probative evidence before the Tribunal to prove that JP was not his actual identity. It was submitted that whilst the ‘flaws’ heavily affected the applicant’s credibility and the reliability of his claims in the second protection visa application, the applicant was truthful about his identity and the significant risk to his life if he returns to Sri Lanka.
At the hearing I asked the applicants’ solicitor to identify the specific paragraphs in the Tribunal’s decision record which demonstrated the Tribunal’s failure to give proper and genuine consideration to evidence relating to the applicant’s ‘true’ identity. The solicitor explained that there was an issue with the whole of the Tribunal’s decision as the Tribunal did not give sufficient ‘credit and consideration’ to the documents provided in the second application which prove that the applicant’s ‘true identity’ is JP. It was contended that the Tribunal erred when it relied on the documents in the first protection visa application to find that JP was not the applicant’s ‘true identity’.
Given the role and limitation of the Court in judicial review proceedings, I remarked that the assessment of evidence was generally a matter for the Tribunal and that it was also for the Tribunal to decide what weight (if any) to give to the evidence before it. The applicants’ solicitor contended that the Tribunal had misused its power and failed to give proper credit to all the elements when choosing to rely on the documents in the first protection visa application, leading it to arrive at the wrong conclusion that the applicant was not JP.
The Minister contended that the Tribunal properly considered all the evidence before it and that its conclusions about the applicant’s identity were open to it on the material before it, and for the reasons it gave. The Minister contended that there was no error on the part of the Tribunal in its consideration of the evidence before it, and that the credibility findings of the Tribunal were not illogical or lacking a probative basis.
Consideration
A visa may be cancelled under s 116(1AA) of the Act if the Minister is not satisfied as to the visa holder’s identity.
In BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387, Button J observed at [39] that the term ‘identity’ was not defined in the Act and that it was used in various provisions. It was held that some provisions, including s 116(1AA), ‘use the term to refer (at least) to a concept that distinguishes, in an ongoing manner, one unique individual from another’.
The ground as advanced alleges that the Tribunal failed to give proper, genuine and realistic consideration to the evidence in support of the applicant’s claim that his ‘true identity’ is that of JP.
It is well established that a decision maker is required to properly engage with the claims and evidence before them. However, as cautioned by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [26], the use of labels such as ‘proper, genuine and realistic consideration’ outside their proper context risks invitation of impermissible merits review by a court.
As submitted by the Minister, the Tribunal acknowledged (at [42] of its reasons) the existence of identity documents relating to JP, including the birth documents for JP which had been provided by the applicant to the Tribunal. In that regard, the Tribunal accepted the potential of JP being a genuine identity but, given its cumulative concerns, was not satisfied that it was the applicant's ‘true identity’ as claimed.
At [10]–[40] of its reasons, the Tribunal set out eight detailed considerations which, in combination, led it to find the applicant was not JP as he had claimed. The reasons disclose that the Tribunal put its concerns to the applicant and the applicant was given an opportunity to respond. The reasons also disclose that the Tribunal had regard to the applicant’s responses (and explanations) as part of its considerations. For example, at [15]–[18], the Tribunal indicated that it had regard to the applicant’s explanation that people smugglers were involved in his travel to Australia and had advised him to provide false information in his 2001 protection visa application. Also, at [36]–[38], the Tribunal considered the applicant’s explanation that the reason he did not proceed with his genuine claims under his truthful identity of JP was because he was advised by friends that if he did so he would be deported. The Tribunal, for the reasons it gave, was not satisfied with the applicant’s explanations.
I am satisfied that the Tribunal considered the identity documents relating to JP and that it properly engaged with the evidence before it relating to the applicant’s claim that JP was his ‘true identity’. The applicants’ complaint that the Tribunal gave more (or less) consideration to particular evidence does not of itself establish any error on the part of the Tribunal. The evaluation (or weighing) of the evidence was a matter for the Tribunal: Plaintiff M1 at [24]. The applicants have not demonstrated, for example, that the Tribunal’s assessment of the applicant’s claims or the weight given to the evidence was unreasonable or irrational: Plaintiff M1 at [25].
The matters raised by the applicants are but mere expressions of disagreement with the Tribunal’s evaluation of the evidence, its reasoning process and the finding that the applicant was not JP as claimed – none of which establish jurisdictional error on the part of the Tribunal.
Particular (b) to ground one takes issue with the Tribunal’s consideration of the claims made in the first protection visa application as compared with the second protection visa application. The complaint, as I understand it, is that the Tribunal gave more weight to the inconsistencies in the second application, notwithstanding the applicant’s explanations, and relied on those credibility concerns to reject the applicant’s claimed identity and the credibility of his protection claims in the second visa application.
As noted by the Minister in their submission, the Tribunal put to the applicant that his claims in the 2007 protection visa referred to events which occurred in 2002, 2004 and 2006 which he could not have experienced given he was in Australia at the time. The Tribunal recorded at [22] that, in response to those concerns, the applicant admitted they were not true. The Tribunal considered this to be significant and found that this undermined the credibility of the applicant’s protection claims and his credibility generally.
As submitted by the Minister, the Tribunal’s credibility findings were detailed and thorough. They did not lack a probative basis and nor could they be said to be illogical: cf. DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [30] per Kenny, Kerr and Perry JJ.
The Tribunal’s adverse credibility findings were clearly open to it for the detailed reasons it gave. Further, it was neither illogical nor unreasonable for the Tribunal to rely on those findings to conclude that it could not be satisfied as to the applicant’s identity.
The applicant has not established any error on the part of the Tribunal in its consideration of the claims and evidence before it, or in its conclusion that it could not be satisfied as to the applicant’s identity. It was therefore open for the Tribunal to find at [44] that the ground of cancellation under s 116(1AA) existed.
Ground one does not establish jurisdictional error.
Ground two
By this ground the applicants contend that the Tribunal, in exercising its discretion to cancel the applicant’s protection visa, failed to give proper, genuine and realistic consideration to the risk of harm to the applicant and his family if they returned to Sri Lanka. The applicants take issue with the Tribunal's consideration of Australia’s non-refoulement obligations and the impact of the decision on the applicants’ Australian citizen children.
In written submissions, the applicants submitted that the Tribunal made a jurisdictional error by failing to consider the impact on the applicant’s wife and two Australian citizen children, one of whom is suffering from acute asthma, when considering whether it was reasonable for the applicant to return or relocate to other regions in Sri Lanka.
The applicants submitted that the Tribunal accepted that one of the children suffered from episodic asthma and that medical care may be superior in Australia to Sri Lanka, but was not satisfied the child would not receive adequate medical care and found there was no suggestion his condition was severe or acute. It was also submitted that the Tribunal had accepted that the second applicant suffered from depression and anxiety and acknowledged that treatment would be superior in Australia.
In oral submissions, the applicants contended that the Tribunal did not rely on any evidence which indicated that a child with asthma would be ‘okay’ in Sri Lanka given the level of pollution and medical treatment available there. The applicants submitted that the Tribunal found that the children would be able to obtain Sri Lankan citizenship and become dual Sri Lankan-Australian citizens. The applicants contended, however, that the Tribunal did not consider the difficulties and risk of harm in Sri Lanka including ‘medical services, difficulties with food, drinking water, sanitation, electricity, education, health care and adequate shelter’ and financial hardship.
When asked at the hearing whether the applicant raised the issue of financial hardship before the Tribunal, the applicants conceded that the matter was not raised. However, the applicants argued that the Tribunal should be informed of all elements that will impact the Australian citizen children and should have made their decision after considering whether the children would be safe if sent back to Sri Lanka since the children have medical issues.
It was also submitted that the applicant still faced a risk of persecution by the Tamil group. The applicants contended that the Tribunal did not rely on any probative evidence that suggests the Tamil group was dismantled and no longer in power, or that they no longer conducted targeted killings and that the applicant would be safe in Sri Lanka.
The Minister submitted that the Tribunal considered Australia’s non-refoulment obligations but was not satisfied that the applicant was owed protection. It was also submitted that the Tribunal considered the hardship that would be faced by the applicant and his family if they returned to Sri Lanka and that it considered these factors against the best interest of the children and medical needs of the second applicant and the child. It was submitted that there was no error in the way the Tribunal considered the exercise of the discretion, which was a matter for the Tribunal alone.
Consideration
The Tribunal’s consideration of the best interest of the applicants’ children warrants further detailed consideration and I have addressed this matter separately further below.
Ground two, as advanced by the applicants, also alleges a failure on the part of the Tribunal to give proper, genuine and realistic consideration to various circumstances when exercising its discretion to cancel the applicant’s visa.
It is not in dispute that the Tribunal, when considering whether to exercise its discretion to cancel the applicant’s visa, was obliged to give proper, genuine and realistic consideration to the merits of the applicant’s case.
As to the Tribunal’s approach when considering the representations, in Plaintiff M1 the Court (per Kiefel CJ, Keane, Gordon and Steward JJ) said:
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. (citations omitted).
Having found that the ground of cancellation under s 116(1AA) existed, the Tribunal, noting that the ground did not require mandatory cancellation, went on to consider at [45]–[85] whether the visa should be cancelled.
The Tribunal correctly stated that there were no matters in the Act or Regulations that must be considered, and said it had regard to the circumstances of the case, including those raised by the applicant and matters in the Department’s policy.
In respect of the Tribunal’s consideration of the applicant’s claim that he would be at risk of serious harm if returned to Sri Lanka and the contention that the Tribunal did not have probative evidence to be satisfied that the applicant would be safe if he returned to Sri Lanka, I am not satisfied that this establishes any error on the part of the Tribunal.
At [51], the Tribunal records the applicant’s evidence that the purpose of his travel and stay in Australia was to seek protection as he had experienced incidents of past harm, details of which he provided, when he was in Sri Lanka. The Tribunal recorded the applicant’s evidence that he and his family would be killed or harmed if they returned to Sri Lanka because of adverse interest in him by the Sri Lankan authorities.
The Tribunal was not required to have probative evidence to satisfy itself that the applicant and his family would not be harmed upon return to Sri Lanka. This misunderstands the role of the Tribunal. It was for the applicant to advance whatever evidence he wished in support of his claim to fear harm upon return to Sri Lanka, and for the Tribunal to properly assess that evidence as part of its consideration.
The Tribunal appropriately identified at [53], that the claims were relevant to whether the applicant was owed non-refoulment obligations by Australia. Due to the credibility concerns the Tribunal had with the applicant’s protection claims, which it set out earlier in its decision, the Tribunal considered at [54] that this significantly undermined the applicant’s claim that he would face a real chance of serious or significant harm in Sri Lanka. The Tribunal was accordingly not satisfied that cancellation of the applicant’s visa would result in Australia breaching its non-refoulment obligations: [45], [56].
The Minister submitted that the Tribunal's credibility findings were free from error and that the Tribunal's reliance upon these findings when considering Australia’s non-refoulement obligations was open to it.
I am satisfied that the Tribunal understood and properly evaluated the claims made by the applicant as to why he sought protection in Australia and the harm he feared if he and his family returned to Sri Lanka. As considered above, the Tribunal’s credibility findings, and particularly those relating to the applicant’s claims of past harm in Sri Lanka (at [18]–[23]), were not illogical or lacking a probative basis. I accept that it was open for the Tribunal to rely on its earlier findings when considering the applicant’s claims as to why he feared returning to Sri Lanka. The applicants have not established that the Tribunal’s engagement with (or assessment) of the claims and evidence in that regard, including its reliance on its earlier credibility findings, was legally unreasonable or irrational.
I am therefore not satisfied that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim that he (and/or his family) would be at risk of serious or significant harm (because of the applicant’s past adverse interest) by authorities in Sri Lanka.
As to the other matters raised by the applicants relevant to the hardship that would be faced by the applicants and their children, I accept that the Tribunal expressly considered those matters as part of its consideration of the discretion.
As submitted by the Minister, the Tribunal accepted that hardship would be faced by the applicant and his family members in respect of uprooting their lives and returning to Sri Lanka: [62]. The Tribunal considered at [63]–[65] the impact of the decision to cancel the visa on the applicants’ children. It also considered at [67]–[70] the medical condition of the applicants’ son. It considered at [71]–[73] the medical condition of the second applicant. As acknowledged by the applicants, the Tribunal accepted that treatment for the conditions would be superior in Australia as compared to Sri Lanka and considered this factor weighed against cancellation of the applicant’s visa.
I am not satisfied that the Tribunal’s consideration of the matters raised by the applicants was dismissive or that it failed to meaningfully engage with the representations made by the applicants or properly consider the evidence before it.
In respect of the child’s medical condition, the Tribunal accepted that the applicants’ child suffered from episodic asthma and stated at [69] that the medical certificate did not particularise or specify the severity of condition. Whist it accepted that medical care in Australia may be ‘superior’ than in Sri Lanka, the Tribunal was not satisfied that the child would not receive medical care in Sri Lanka for the relatively common issue of asthma, as there was no indication by his doctor that the condition was severe and acute such that it would be exacerbated upon return to Sri Lanka. I have not been persuaded that the Tribunal’s assessment of the evidence pertaining to the child’s medical condition or its reasoning in that regard was attended by any relevant error.
As to the applicant’s contention that the Tribunal should have inquired (and satisfied itself as to) the risk to the child in Sri Lanka because of his asthma, I accept the Minister’s submission that it was for the applicants to make those claims. I am not satisfied that the Tribunal had any obligation to ‘investigate’ whether the child’s medical condition would put his health at risk if he returned to Sri Lanka. It was for the applicants to advance this claim and provide any evidence they wished to rely upon, and for the Tribunal to then properly consider that evidence as part of its consideration. I am not satisfied that there was any failure on the part of the Tribunal to make the inquiries suggested by the applicants.
As to the contention that the Tribunal failed to consider the financial hardship that would be experienced by the applicants if they returned to Sri Lanka, there is no evidence before the Court, and it was conceded at the hearing, that the applicants had not advanced claims of financial hardship before the Tribunal. In the circumstances, I am not satisfied that there was a failure on the part of the Tribunal to consider the applicants’ financial circumstances.
There is no evidence before the Court which suggests that the applicants were not given an opportunity to advance whatever claims or evidence they wished to provide in support of their case. The Tribunal indicated at [50], that it had discussed the discretionary factors with the applicants at the hearing. The decision then sets out the evidence given by the applicants at the hearing in respect of these factors and the Tribunal’s assessment of that evidence. The Tribunal’s engagement with the various factors and evidence demonstrated it understood and appreciated the matters being raised by the applicants. I am not satisfied that there was any failure on the part of the Tribunal to properly and genuinely consider the claims and evidence advanced by the applicants in support of their case.
In considering the exercise of its discretion, the Tribunal considered and balanced the circumstances for and against cancellation. I accept, as submitted by the Minister, that it was entirely a matter for the Tribunal as to how it wished to exercise its discretion. Absent any legal unreasonableness or irrationality in the way the Tribunal balanced the various considerations, the Court has no power to interfere with the exercise of the discretion.
The applicants have not established any jurisdictional error by the Tribunal in its consideration of the evidence relevant to the different circumstances or the way it balanced those circumstances when considering the exercise of its discretion.
Ground one does not establish jurisdictional error.
Additional ground: the Tribunal’s consideration of the best interests of the children
In written and oral submissions, the applicants’ solicitor contended that the Tribunal had failed to properly consider the ‘best interests’ of the applicants’ Australian citizen children and the harm they would face if they returned to Sri Lanka. This, in my view, expanded upon the matters raised by ground two which was couched in terms of the impact on the whole family if they all had to leave Australia, the health of the second applicant and child who has asthma, and the general conditions in Sri Lanka compared to Australia.
As noted above, the applicants failed to file their written submissions by the date provided in the orders and so the Minister did not have the benefit of considering the submissions prior to filing their written submissions. The Minister was nevertheless granted time to file further written submissions to respond to the issue of whether the Tribunal properly considered the best interests of the applicants’ children as guided by Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (Teoh) and Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan).
Consideration
At [63] of its decision, the Tribunal expressly stated that: ‘International obligations on Australia, particularly the need for the best interests of the Australian citizen children to be a primary consideration, need to be considered’.
The Minister relevantly referred to Article 3(1) of the Convention on the Rights of the Child (CROC), which provides that in administrative actions involving children, ‘the best interests of the child shall be a primary consideration’: Teoh at 287–288.
The Minister referred to the decision of Wan, which considered the CROC in the context of a cancellation decision made under s 501 of the Act, in which the Full Federal Court found at 142 ([32]) that:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
I am mindful that Wan, which relied on Teoh, concerned the cancellation of a visa under a different power, namely s 501 of the Act. Nevertheless, the reasoning in Wan provides guidance on the approach to be taken by a Tribunal when considering, as a primary consideration, the best interests of the applicants’ children: Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 2020 FCA 148 at [54].
The Tribunal in this case did not expressly state that it would be in the best interests of the children not to exercise the discretion to cancel the applicant’s visa. I accept, as submitted by the Minister, that not making an express finding to that effect is not of itself an error. The Minister relied upon Hopkins v Minister for Immigration and Citizenship [2007] FCA 1108 at [34]–[36]. Relevantly, at [34] the Court said:
The cases since Wan show that a finding as to what decision would be in the child or children's best interests may in effect be inferred in a variety of circumstances. What emerges is that the paramount issue remains whether the decision maker has considered the best interests of the child or children as a primary consideration. Whether on a fair reading a finding has been made about what decision would be in the child or children's best interests will turn very much on the facts of the case.
Turning to the facts of this case, the Tribunal expressly stated that the best interest of the applicants’ Australian citizen had to be considered and acknowledged that this was a primary consideration. In its reasons, the Tribunal had regard to the following:
·At [46], that the children were born in Australia and are Australian citizens;
·At [63], that the children were eight and five years old;
·At [63], that the children would be able to obtain Sri Lankan citizenship and would be dual Sri Lankan and Australian citizens;
·At [64], that the children principally speak English but do speak Tamil at home;
·At [64], it is likely that the family unit would remain intact upon return to Sri Lanka and the children would have the care and protection of their parents in Sri Lanka;
·At [65], evidence of the second applicant which suggests that there would be extended family support to the family if they return to Sri Lanka;
·At [66], that one of the children suffers from asthma which would be exacerbated on return to Sri Lanka due to the pollution levels.
·At [70], It accepted that the applicants’ son has episodic asthma and that medical care may be superior in Australia to Sri Lanka, but as there was no indication that the condition was severe or acute, the Tribunal was not satisfied that the child would not receive adequate medical care in Sri Lanka (at [70]);
·At [80], that the children were ‘relatively young and with their youth will have capacity to adjust to the new environment in Sri Lanka’.
·At [80], that the children will retain their Australian citizenship; and
·At [84], that the children were ‘blameless’.
As submitted by the Minster, the Tribunal acknowledged that the 'key issue' in favour of exercising the discretion not to cancel the applicant’s visa was the 'adverse impact' on the applicant's wife and children which would create disruption and adjustment for the family unit 'particularly the two children' in returning to Sri Lanka after many years of being in Australia (at [64] and [80]).
I am satisfied that it can be inferred from the reasons that the Tribunal considered that the exercise of the discretion not to cancel the applicant’s visa (and the family remaining in Australia) would be in the best interests of the children: at [80].
A fair reading of the reasons in its entirety discloses detailed consideration by the Tribunal of the evidence before it pertaining to the children. The Tribunal had regard to the age of the children, their Australian citizenship and accepted that they primarily spoke English. It accepted the disruption and hardship the children would experience if they returned to Sri Lanka (a developing country) after many years of living in Australia. It considered the medical issues of the child who suffers from asthma and the mental health issues of children’s mother (the second applicant).
The Tribunal also considered that the children were familiar with the Tamil language as it was spoken at home. It considered that the children would return with the applicants (as a family unit) to Sri Lanka and that they would have the protection of their parents. As the children were ‘relatively young’, it considered that they would have the capacity to adjust to life back in Sri Lanka and that they had support from extended family. It did not consider that the child who suffered from episodic asthma would not get adequate medical care in Sri Lanka. It also considered that the children would retain their Australian citizenship which would provide opportunities for them in future: [80], [81].
I am satisfied that the Tribunal gave proper, genuine and realistic consideration to the best interests of the applicants’ children. I am also satisfied that it weighed this factor, which it acknowledged was a primary consideration, against the other factors it considered when deciding whether the applicant’s visa should be cancelled.
I accept the Miniter’s submission that the Tribunal weighed the best interests of the children (and the applicant's family) against other factors, including the cumulative impact of the applicant's credibility concerns, and found that it would exercise its discretion to cancel the applicant’s visa (at [85]). As discussed above, there was no error in the way the Tribunal balanced the different factors or how it exercised its discretion.
While the Tribunal did not expressly indicate the weight afforded to the consideration of the best interests of the children, I accept the Minister’s submission that there was no requirement to do so, as it had engaged in a process by which it genuinely considered each of the relevant circumstances and balanced them as part of its overall consideration of the exercise of the discretion.
The applicants have not established that the Tribunal failed to properly consider the best interests of their Australian citizen children when considering the exercise of the discretion. I am also not satisfied that the Tribunal made an error of the kind identified in Wan and Teoh.
For these reasons, the application must be dismissed.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 18 August 2025
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