DAT18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1071
•10 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAT18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1071
File number(s): SYG 1627 of 2018 Judgment of: JUDGE ZIPSER Date of judgment: 10 July 2025 Catchwords: MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – distinction between stages of Authority assessing under s 473DD whether new information could be considered and, where new information could be considered, determining whether new information should be accepted as true or correct - application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 36, 65, 473DC, 473DD, 476 Cases cited: Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64
Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2020] FCAFC 176
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 2 July 2025 Place: Parramatta Applicant: Appeared in person Solicitor for the Respondents: Ms Carmen Juarez from Mills Oakley ORDERS
SYG 1627 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAT18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
10 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to "Minister for Immigration and Citizenship".
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the amount of $6,700.
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 ZIPSER
INTRODUCTION
On 12 June 2018, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Immigration Assessment Authority (IAA) dated 21 May 2018. The IAA affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (SHEV) under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In October 2012, the applicant, a citizen of Sri Lanka with Tamil ethnicity, arrived in Australia as an unauthorised maritime arrival.
On 28 February 2017, the applicant lodged an application for a SHEV, claiming to fear harm if he returned to Sri Lanka.
On 26 July 2017, a delegate of the first respondent, after interviewing the applicant on 15 June 2017, made a decision refusing to grant the applicant a SHEV.
On 31 July 2017, the matter was referred to the IAA for review under Part 7AA of the Act (as it then was).
On 19 August 2017 and 18 March 2018, the applicant's representative provided submissions and materials to the IAA.
On 21 May 2018, the IAA made a decision affirming the delegates’ decision not to grant the applicant a SHEV.
IAA’S DECISION
The IAA at [2]-[12] considered, in respect of the submissions and materials provided by the applicant’s representative to the IAA on 19 August 2017 and 18 March 2018, whether any information was “new information” within the meaning of s 473DC(1) of the Act and, if so, whether the IAA was barred by s 473DD from considering the new information.
The IAA at [13] summarised the applicant’s claims for protection in Australia.
The IAA at [16]-[23] made findings of fact concerning the applicant’s claimed problems in Sri Lanka. For reasons explained by the IAA, the IAA held “serious concerns about the credibility of the applicant and the veracity of some of his protection claims” (at [16]), attached “little if any weight to [various] supporting documents” (at [22]), and “given the significant changes, inconsistencies and credibility issues, [was] satisfied that the applicant has embellished, exaggerated and fabricated parts of his evidence in order to boost his claims for protection” (at [23]).
The IAA at [25]-[64] considered whether the applicant was a refugee as defined in s 5H(1) of the Act. The IAA at [64] found that the applicant “does not meet the requirements of the definition of refugee in s 5H(1)”.
The IAA at [65]-[73] considered whether the applicant satisfied the complimentary protection criterion for a protection visa in s 36(2)(aa) of the Act. The IAA at [73] concluded that the applicant did not meet s 36(2)(aa).
Judicial review application and steps up to hearing on 2 July 2025
On 12 June 2018, the applicant filed in this Court an application for judicial review of the IAA’s decision. The application contained the following two grounds (as written) (Application):
Ground 1
The Authority's decision is affected with legal error as the finding regarding the new claim (LTTE involvement) it was inconsistent, illogical and so unreasonable
•The Authority considered the new information.
•It was unreasonable to give little weight to the supporting documents that corroborated the new claim related to LTTE involvement [22].
•It was unreasonable to state at [22] "I do not accept his claimed fears for not previously revealing he was a LTTE member and combatant and in my view his late revelation of the claim is part of his evolving evidence that reflects poorly on his overall credibility" because the new information regarding the LTTE involvement was accepted by the Authority to be "personal information that is credible" [7].
•The Authority appears to have accepted the new information regarding the LTTE involvement due to the applicant having fulfilled the requirement to consider this claim (the 473DD requirement).
•It could not be said that the late revelation of the LTTE claim was not accepted as the IAA found exceptional circumstances exists to consider the new information.
•Therefore the Authority fell into error for this reason.
•Will provide more details once court book is published.
Ground 2
The Authority's decision is affected with legal error as the LTTE familial links were not considered in a proper and fair manner.
Following a period of inactivity, on 12 February 2025 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve any amended application and a written submission at least 28 days before the hearing.
On 21 May 2025, the registry of the Court notified the parties that the matter was listed for hearing on 2 July 2025.
On 18 June 2025, the first respondent filed and served a written submission which responded to the two grounds in the Application.
On 30 June 2025, the applicant lodged a proposed amended application which, in addition to maintaining the two grounds in the Application, added a third ground as follows (as written) (Amended Application).
Ground 3
The IAA failed to consider relevant considerations.
Particulars
a. The applicant in his statement to the Department of Immigration (CB66) stated that in Facebook his face was visibly seen in the Heroes day celebration.
b. The applicant noted in his statement that Sri Lankan authorities went to his house in 2016 and inquired about him for attending L TTE event in Sri Lanka.
c. The applicant is a Christian. It is submitted that [name of priest] has given a letter confirming applicant's association with the Catholic Church and community. The IAA discussed about the DFAT report and in the DFAT report there is a section regarding issues faced by the Chrisitan community. (See CB 92) (CIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 651)
d. The IAA failed to consider whether the applicant has means to pay bail money in Sri Lanka.
e. The IAA was aware that the applicant's family situation but failed to consider whether the applicant will be able to provide a personal guarantor to get bail.
The applicant did not file a written submission before the hearing on 2 July 2025.
Hearing on 2 July 2025
At the hearing in this Court on 2 July 2025, the applicant appeared in person assisted by a Tamil interpreter. Ms Carmen Juarez from Mills Oakley appeared for the first respondent.
The applicant brought to court a copy of a Court Book, filed and served by the first respondent in July 2018, which contained the IAA’s decision and documents before the IAA. At the commencement of the hearing, I directed the applicant’s attention to the IAA’s decision and explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error, which I described as a significant error or mistake, in the IAA’s decision. With reference to the IAA’s written reasons for decision, I explained the main categories of jurisdictional error.
Ms Juarez tendered the Court Book (CB). The applicant did not seek to rely on additional evidence.
I told the parties that I must decide whether the applicant should be granted leave to rely on ground 3 in the Amended Application, noting that the applicant did not provide a copy of the Amended Application to the first respondent’s solicitor until a few days before the hearing. I asked the applicant to explain his delay in preparing and serving the Amended Application. The applicant’s reply indicated that a person in his church prepared the grounds in the Application and the Amended Application. The applicant did not otherwise explain his delay in preparing and serving the Amended Application. Ms Carmen stated that the first respondent did not oppose the grant of leave for the applicant to rely on ground 3 in the Amended Application.
I invited the applicant to make oral submissions to persuade the Court that there is a jurisdictional error in the IAA’s decision. The applicant stated that he cannot return to Sri Lanka because the Sri Lankan authorities are causing problems to his family and looking for the applicant. The applicant stated that his daughter left Sri Lanka and now lives in France, and his son, worried about his safety, went to London. The applicant added that, if he goes back to Sri Lanka, he will be put in prison.
I endeavoured, unsuccessfully, to focus the applicant’s attention on identifying an error in the IAA’s written reasons for decision.
Ms Juarez made oral submissions. In respect of grounds 1 and 2 in the Amended Application, she relied on the first respondent’s written submission. She made oral submissions in response to the new ground 3 in the Amended Application.
CONSIDERATION
I will grant leave to the applicant to rely on ground 3 in the Amended Application. Although the applicant filed and served the Amended Application only a few days before the hearing on 2 July 2025 and was unable to explain why he delayed until this time to file and serve the Amended Application, ground 3 identifies complaints with the IAA’s reasons for decision and Ms Juarez was able to respond to the complaints during the hearing on 2 July 2025.
Ground 1
Particular in 2nd dot point
The applicant provided documents in support of his claims concerning events in Sri Lanka, including a letter from a priest dated 18 November 2012 at CB 92, a letter from the Grama Officer dated 15 November 2012 at CB 91, a statutory declaration from a relative of the applicant dated 17 August 2017 at CB 148, some photos, some documents from France at CB 130-136, and a doctor’s report dated 15 August 2017 at CB 149-150. The IAA at [20]-[22] considered the documents. The IAA at [22], after explaining its concerns about each document, concluded that “I attach little if any weight to those supporting documents”.
The particular in the 2nd dot point of ground 1 asserts that “it was unreasonable to give little weight to the supporting documents”. The applicant does not explain why it was unreasonable for the IAA to “give little weight to the supporting documents”. The assessment of weight to be given to evidence is a matter for the decision-maker: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. I consider that the IAA’s “reasons for decision [at [22]] disclose a logical and intelligible basis for” (Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [54]) its finding that it would attach little, if any, weight to the documents. This particular does not identify a jurisdictional error in the IAA’s decision.
Particular in 3rd dot point
In August 2017, the applicant provided to the IAA a statement in which he claimed for the first time that he was a member of the LTTE and fought in a combat unit (LTTE Member Claim), despite having not previously claimed in his SHEV application, at the interview with the first respondent’s delegate on 15 June 2017, or at any other time, to have been an LTTE member. The LTTE Member Claim was new information within the meaning of s 473DC(1) of the Act. The IAA at [6]-[7] considered whether it was barred by s 473DD from considering this new information. The IAA stated at [7]:
The applicant’s explanation for not disclosing the information previously is his claimed fears. I do not accept the applicant’s claimed fears. First, he had professional assistance when preparing his SHEV application, and I do not accept his fear of being returned to Sri Lanka if in the LTTE would have persisted after had he access to that professional advice and assistance. Secondly, his stated fear of the Sri Lankan authorities becoming aware of his actual involvement with the LTTE is inconsistent with the claim made in his SHEV application that the Sri Lankan Army (SLA) had already identified him as a LTTE member because of his amputated thumb and his actions in now revealing his supposed LTTE membership is contrary to the premise of his fear that if he revealed such information in Australia the Sri Lankan authorities may become aware of his involvement with the LTTE. As such, I am not satisfied that the new claim was not and could not have been provided to the delegate. However, I accept that the new claim is personal information that is credible in the section 473DD sense, in that it is capable of being believed…. The applicant has satisfied me that the new information, consisting of his new claim and supporting documents, is credible personal information that was not known, and had it been known it may have affected the consideration of the applicant's claims and I am also satisfied that there are exceptional circumstances to justify considering that new information.
The IAA at [22] stated:
As discussed above, I do not accept his claimed fears for not previously revealing he was a LTTE member and combatant and in my view his late revelation of this claim is part of his evolving evidence that reflects poorly on his overall credibility.
The particular in the 3rd dot point of ground 1 asserts that this finding at [22] was unreasonable “because the new information regarding the LTTE involvement was accepted by the Authority [at [7]] to be ‘personal information that is credible’”. This particular misunderstands the purpose and effect of the IAA’s findings at [7] concerning s 473DD of the Act. The IAA at [7] considered whether it was barred by s 473DD from considering the LTTE Member Claim. The IAA at [7] concluded, in the applicant’s favour, that it was not barred from considering the LTTE Member Claim, although it rejected the applicant’s explanation for why he did not previously disclose the LTTE Member Claim. A separate question was whether the IAA accepted the LTTE Member Claim. The IAA, in the last sentence of [23], “reject[ed] [the applicant’s] claim … that the applicant was a member of the LTTE”. In the course of reaching this finding, the IAA in the last sentence of [22] repeated its rejection of the applicant’s explanation for why he did not previously disclose the LTTE Member Claim. There is no inconsistency between the IAA’s findings at [7] and the IAA’s findings in the last sentences of [22] and [23]. That the IAA was required to consider the LTTE Member Claim does not mean that the IAA accepted or was required to accept the LTTE Member Claim. This particular does not identify a jurisdictional error in the IAA’s decision.
The remaining dot points of ground 1 do not identify separate grounds of jurisdictional error.
Ground 2
This ground lacks particulars. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2020] FCAFC 176 at [37].
Ground 2 does not identify a jurisdictional error in the IAA’s decision.
Ground 3
It is asserted in paragraph (a) that “the applicant in his statement to the Department of Immigration stated that [on] Facebook his face was visibly seen in the Heroes Day celebration”. As explained by Ms Juarez in oral submissions at the hearing on 2 July 2025, the IAA at [18] (last dot point) considered and rejected this claim. The applicant has not identified any error by the IAA in rejecting the claim, and no error is apparent from the face of the IAA’s reasons.
It is asserted in paragraph (b) that “the applicant noted in his statement that Sri Lankan authorities went to his house in 2016 and inquired about him for attending LTTE events in Sri Lanka”. As explained by Ms Juarez in oral submissions at the hearing on 2 July 2025, the IAA at [18] (penultimate dot point) considered and rejected this claim. The applicant has not identified any error by the IAA in rejecting the claim, and no error is apparent from the face of the IAA’s reasons.
Paragraph (c) refers to a letter from a priest which appears at CB 92. As explained by Ms Juarez in oral submissions at the hearing on 2 July 2025, the IAA:
(a)at [14] accepted the applicant was Christian;
(b)at [33] recorded that the applicant “has not claimed that he experienced any discrimination or harm in Sri Lanka” because he was Christian “and makes no protection claims on that account”; and
(c)at [20]-[21] discussed the letter from the priest.
The applicant has not identified any error by the IAA in these paragraphs of its decision, and no error is apparent from the face of the IAA’s reasons.
It is asserted in paragraphs (d) and (e) that the IAA “failed to consider whether the applicant has means to pay bail money in Sri Lanka” and “failed to consider whether the applicant will be able to provide a personal guarantor to get bail”. As explained by Ms Juarez in oral submissions at the hearing on 2 July 2025, contrary to these assertions, the IAA considered these matters at [68] and [69]. The applicant has not identified any error by the IAA in these paragraphs of its decision, and no error is apparent from the face of the IAA’s reasons.
Ground 3 does not identify a jurisdictional error in the IAA’s decision.
Independent consideration
In light of the serious consequences for the applicant if there is a jurisdictional error in the IAA’s decision and the fact he has not obtained legal assistance for his judicial review application, on application of the approach in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the [IAA]’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the [IAA]’s reasons”. No mistake clearly appears in the IAA’s reasons for decision.
COSTS
Ms Juarez sought an order that the applicant pay the first respondent’s costs in the amount of $6,700 which was less than the first respondent’s solicitor/client costs. This is less than the scale amount of $8,371.30.
The applicant stated that he does not have this money to pay a costs order. However:
(a)In circumstances where the scale amount is $8,371.30, which is “a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case” (Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12 at [69]), I consider the amount of $6,700 sought by the first respondent is reasonable.
(b)That the applicant is unable to meet a costs order “does not provide a principled basis for not making a costs order”: Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64 at [8]. The applicant, by making and progressing the application to hearing, has forced the respondent to incur legal costs. I consider that his indigence does not affect a determination of an amount which is fair and just in the present matter.
I will order that the applicant pay the first respondent’s costs in the sum of $6,700.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 10 July 2025
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